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'The Legal Conscience

CM-

FELIX S. COHEN

BY LUCY KRAMER COHEN

"Those of us who followed the un-
folding of Felix Cohen's powers
with increasing esteem and admira-
tion must . . . derive an intensified
realization of his qualities and their
enduring fruit from this collection
of his writings/'

— Felix Frankfurter

THE LEGAL CONSCIENCE

Selected Letters of Felix S. Cohen

An outstanding lawyer and scholar,
Felix Cohen was a man of tremen-
dous vitality* industry, and will,
with a passionate devotion to truth
and justice. In the articles and
speeches collected here, Felix Cohen
came to grips with central issues of
logic and ethics as he inquired into
the foundations of the law and the
practice as well as the theory of
democratic society.

The selections are in three parts,
representing the three main areas of
his interest: "Logic, Law, and
Ethics,1* "The Indian's Qtiest for
Justice/1 and **Ttie Philosophy of
American Democracy/*

Ttiese essays vigorously espouse a

functional juritprudence IB which

the law is seen In broad perspective

as an instrument of social justice.

Tiiey argue passionately the view

thai United Stales Indian policy

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THE LEGAL CONSCIENCE

Selected Papers of Felix S. Cohen

Portrait of Felix S. Cohen in the Morris Rf Cohen Library at

City College, New York City. Painting by Joseph Maigulics, 1954,

THE LEGAL CONSCIENCE

Selected Papers of Felix S. Cohen

Edited by LUCY KRAMER COHEN

Foreword by FELIX FRANKFURTER

Introduction by EUGENE V. ROSTOW

NEW HAVEN, YALE UNIVERSITY PRESS, 1960

and printed in the United States of America by
the Vail-Ballou Press, Binghamton, N*Y.
All rights reserved, This book may not be
reproduced, in whole or in part, in any form
(except by reviewers for the public press),
without written permission from the publishers.
Library of Congress catalog card number: 60-14249

TO GENE AND KAREN
con amore

Editor's Note

FELIX S. COHEN contributed to three broad areas of thought: law and
philosophy, Indian problems, and democracy in action. The present
volume contains only a small selection from the vast array of his writings
in these fields. The original articles and critical reviews chosen to make
one substantive volume are indicative rather than exhaustive of the scope
and depth of Felix Cohen's thinking and contribution to the law, both
ideal and real.

As a learned man said many years ago, "It is not incumbent upon
thee to complete the whole work, but neither art thou free to neglect
it." The editor has tried to follow that Talmudic precept, within the
limits of time and capacity. If an injustice has been done the author
and the reader by selection or omission, perhaps time and other publica-
tions will correct it.

No selections were made from the published books of Felix Cohen
(Ethical Systems and Legal Ideals, 1933, reprinted in 1959; Handbook
of Federal Indian Law, 1941; Readings in Jurisprudence and Legal
Philosophy, 1951). Nor were there included any of the numerous and
persuasive briefs prepared by Felix Cohen during his fifteen years on the
Solicitor's Staff of the Department of the Interior, or in private practice
(e.g., the New Mexico Voting Case, Trujillo v. Garley; the Arizona Vot-
ing Case, Harrison v. Laveen; the Idaho Sheep Case, State of Idaho v.
Lawrence; the Arizona Social Security Case, Arizona v. Hobby; the
Alaska Fishing Rights Case, Hynes v. Grimes; the long-standing case of
the Hualpai Indians against the Santa Fe Railroad, U.S. ex rel. Hualpai
v. Santa Fe RR; the Puerto Rican Agricultural Development Corpora-
tion Case, Sudrez v, Tugwelf).

Except for his "Dialogue on Private Property" in the Rutgers Law
Review memorial issue of 1954, not reprinted here, there are no pub-
lished materials that indicate his Socratic, albeit gentle method of teach-
ing law and philosophy — at Yale Law School, at City College in New
York, at Rutgers Law School, and at the New School for Social Research.
From his voluminous lecture notes, which were meticulously prepared

vii

EDITOR'S NOTE

prior to presentation, perhaps his contemplated handbook for the teach-
ing of jurisprudence in the form of dialogues will one day be completed
by other students of legal philosophy.

Within each of the three books that constitute this volume, the papers
are ordered chronologically, a separation being made between essays and
critical book reviews. In adopting this approach the editor has followed
the author's own procedure in preparing a collection of his writings in
1953 for presentation to his children. Beyond adhering faithfully to time,
the writings so ordered also show Felix Cohen's intellectual development.
His original interest and training in philosophy, particularly logic and
ethics, grew into a general interest in ethics as applied to law, then to a
specific application of ethics to legal problems at hand — to conservation
of human and natural resources, to Indians, to immigrants, to the world's
dispossessed, to a final synthesis of practical problems with ethical im-
plications. "What is a Question," written in 1929, has its fruition in six
questions put to philosophers in 1953, in the brief article entitled
"Human Rights: An Appeal to Philosophers." "Modern Ethics and the
Law/' in 1934, finds application in a review of "Civil Rights in Immigra-
tion" in 1953. The implications of "Transcendental Nonsense and the
Functional Approach'1 (1935) are made specific in "Field Theory and
Judicial Logic" (1950) and then simplified in "The Vocabulary of
Prejudice" (1953).

Permission to reprint these and other articles previously published
is gratefully acknowledged. Full citations are given in the Bibliography,
Only slight editorial changes have been made in the original texts,

In a book of long maturation such as this, many people must have con-
tributed to its final publication. As members of a numerous class, they
know the extent of their contributions. However, several must be singled
out for special mention as initiators of the book; Harry Allen Overstreet,
Felix Cohen's teacher of philosophy at City College, who first expressed
his own need for a collection of papers in one accessible volume;
Hundngton Cairns and Ernest Nagel, who through their efforts made
possible a Bollingm grant in the initial stages o! editing; Sidney Kramer,
who relentlessly pursued the editor with embarrassing questions on the
status of the project, but who also offered his wide knowledge and ex*
perience in the field of books and book publishing; Theodore H. Haas,
himself an authority on minority problems and Felix Cohen's chief
collaborator on the Handbook of Federal Indian Law, who was in large
part responsible lor the excellent bibliography in the Rutgew Law
Review, reprinted with some modifications here, as well as for counsel
and encourageme0t during these past six years; Felix Cohen's colleague!

viii

EDITOR'S NOTE

in the private practice of law who offered material and moral support
as well as penetrating criticism — Arthur Lazarus, Louis L. Rochmes, and
Richard Schifter; the three able readers who aided in the task of
selection — Betti Goldwasser, David Ryshpan, and Adam Yarmolinsky;
and members of the younger generation, for whom Felix Cohen collected
his papers in the first instance, who helped in the menial tasks of
assembling, cutting, pasting, and typing.

The editor's indebtedness to Yale University, particularly to its Law
School and its Press, must be obvious to all.

Lucy Kramer Cohen
Washington, B.C.
April, 1960

Contents

FOREWORD, by Justice Felix Frankfurter xiii

INTRODUCTION, by Eugene V. Rostow xv

BOOK I— LOGIC, LAW, AND ETHICS

What is a Question? 3

Casuistry 14

Modern Ethics and the Law 17

Transcendental Nonsense and the Functional Approach 33

The Problems of a Functional Jurisprudence 77
The Relativity of Philosophical Systems and the Method of

Systematic Relativism 95

Law and Language 1 1 1

Field Theory and Judicial Logic 121

Judicial Ethics 160

Human Rights: An Appeal to Philosophers 171

Reviews

Law and the Modern Mind 177

Bentham's Theory of Fictions and The Theory of Legislation 179

Civilisation and the Growth of Law 183

Fundamental Principles of the Sociology of Law 185

An Introduction to the Sociology of Law 192

Law as Logic and Experience 196

An Analysis of Knowledge and Valuation 200

Legal Philosophy from Plato to Hegel 205

BOOK II— THE INDIAN'S QUEST FOR JUSTICE

Anthropology and the Problems of Indian Administration 213

How Long Will Indian Constitutions Last? 222
The Spanish Origin of Indian Rights in the Law of the United States 230

Indians are Citizensl 253

CONTENTS

Indian Claims 264

Original Indian Title 273

Indian Self-Government 305

Americanizing the White Man 315

Indian Wardship: The Twilight of a Myth 328

BOOK III—

THE PHILOSOPHY OF AMERICAN DEMOCRACY

The Socialization of Morality 337

Government and the Social Contract: Ethical Evaluations in the Law 350

Colonialism: A Realistic Approach 364

Mythology of Immigration 384

The Role of Science in Government 390

Science and Politics in Plans for Puerto Rico 404

The Democratic Faith 4 1 7

The Vocabulary of Prejudice 429

Reviews

Government by Judiciary 436

The Folklore of Capitalism 443

An Inquiry into the Principles of the Good Society 447

The Alien and the Asiatic in American Law 452
To Secure These Rights: The Report of the President's Committee on

Civil Rights 457

The Open Society and its Enemies 466

Law and Social Action 472

Equality by Statute: Legal Controls over Group Discrimination 478

Civil Rights in Immigration 481

BIBLIOGRAPHY of Felix S. Cohen 485

INDEX 495

Foreword

by FELIX FRANKFURTER

BARRING the rare exception of a seminal paper by the author of trans-
forming thought, an Einstein or a Mendel (and there does not come to
mind a comparably influential paper in the sociological domain), for
their full significance writings seem to require propulsion within the hard
covers of a book. His Handbook of Federal Indian Law established Felix
Cohen as the unrivaled authority within that field. It became the vade-
mecum of all concerned with its problems — administrators, legislators,
lawyers, friends and exploiters of Indians. It was an acknowledged guide
for the Supreme Court in Indian litigation. This Handbook gave intima-
tions of a scholarship that had cultural dimensions and a philosophic
temper* Nor could the discerning reader of his occasional papers in divers
periodicals, some of them less accessible than law reviews, fail to be struck
with the freshness and trenchancy of their author's mind. But even those
of us who felt the impact of these essays and followed the unfolding of
Felix Cohen's powers with increasing esteem and admiration must, I am
confident, derive an intensified realization of his qualities and their en-
during fruit from this collection of his writings.

The episodic character of his essays and their intermittent appearance
required that they be gathered into this corpus fully to reveal the breadth
and depth of his learning, the originality of his thought and the felicity of
its formulation, as well as his enlistment in humane causes, above all the
cause of a broadly based civilized community, as reflecting not instinctive,
however generous, prejudices, but the report of rational inquiry insofar as
reason can give guidance in analyzing and understanding the bias-laden
and intractable problems of society.

We now see that his thinking on technical philosophical problems,
such as "What is a Question?/' his discussion of so-called technical legal
questions, his disentanglement of the snarls in which the uninformed are
caught when confronted with our Indian problems, the analysis of de-
ceptive prejudices which bar clear thinking about the implications of

xiii

FOREWORD

democracy — these major concerns of Felix Cohen were for him not dis-
parate preoccupations nor did they receive unrelated illumination from
his mind and pen.

While his thinking was organic, in that he saw interrelations where
others dealt with discrete instances, Felix Cohen was not a system-builder.
It is significant that more than once he quoted the wise man who said
that philosophic systems are true insofar as they affirm and false insofar
as they deny. He was a follower of Mr. Justice Holmes's conviction that
the most important feature of philosophic systems is their insights, not
their logical structure or symmetry. Felix Cohen's devotion was to truth-
seeking — a process never completed — not to any ultimates, either his own
or those of others. He was relentless in applying reason even in areas of
human concern, where lazier or more dogmatic temperaments denied
themselves the liberating influence of reason.

Reading this volume, one cannot forego a sense of sadness that Felix
Cohen was allowed to run not more than half his course. But the more
dominant feeling with which one is left, by the expansion of one's horizon
and the call to honest thinking that we owe to this volume, is gratitude to
Felix Cohen for the fullness of a lifetime into which he crowded twenty-
five years of thought and deed, and gratitude to his wife for the great gift
of this collection.

Introduction

by EUGENE V. ROSTOW

FELIX COHEN died at forty-six. But he had already moved mountains as a
public servant, as a practitioner, and as a law teacher and philosophical
scholar o£ law. The publication of his selected papers on jurisprudence
is an event of consequence, for it will make visible and available to a larger
public the mind of a major philosopher of law.

His preface to the book, Readings in Jurisprudence and Legal Philoso-
phy, by Felix Cohen and his distinguished father, Morris R. Cohen, has
three quotations which serve perfectly to illuminate the dominant themes
of his thought about law, and of his life in the law.

This is the first quotation: "It is not in heaven, that thou shouldst say,
who shall go up for us to heaven, and bring it unto us, and make us hear
it, that we may do it? Neither is it beyond the sea, that thou shouldst say,
who shall go over the sea for us, and bring it unto us, and make us hear it,
that we may do it? But the word is very nigh unto thee, in thy mouth, and
in thy heart, that thou mayest do it."

Teaching, thinking and writing — the occupations of the scholar — were
irresistibly attractive to Felix Cohen, But they were for him paths, among
other paths, to the single dominant goal, the moving passion of his unified
and dedicated life. Felix Cohen was a man of justice. He viewed law as
the great instrument of justice. Because he was by temperament and in-
heritance a scholar and a philosopher, he could not refrain from writing,
teaching, and thinking about law in the orderly ways of the scholar and
philosopher. But he refused all our pleas, over a period of many years,
that he give himself over entirely to the intellectual life, central as it was to
his being. He could not leave to others the fight for justice for the Indians
and for the immigrants, those great and humane causes to which he made
so remarkable and so effective a contribution.

Both the scholarly and the practical aspects of Felix Cohen's work in
law represent the same noble thought: the truth is with us, in our daily
bread* and it Is something to be done, not said. Man's duty is goodness.

INTRODUCTION

And the men of law must forever labor to make the measure of ethics the
measure of law. They must labor in the courts and legislatures, on the
soap boxes of political campaigns, in the libraries and classrooms of uni-
versities, by the quiet hearths of their own homes. Felix Cohen could not
ask, "Who shall go up for us to heaven, and bring it unto us." He knew that
each man, in the tasks that fall to his hand, must himself seek out the way
of goodness, and do it.

But Felix Cohen realized also that his own practical struggles for justice
were fought on various sectors of an all-embracing battlefield. To him,
more clearly than for most men, every particular was an aspect of the
universal. The second quotation in his preface is from Holmes: "To see
so far as one may, and to feel, the great forces that are behind every detail
makes all the difference between philosophy and gossip." No phase of his
work was gossip. All of it stemmed from a deeply conscious, profoundly
considered analysis of what law is, and what it is for. He led his students
and readers into every corner of the temple, examining and testing the
beams and the buttresses, the glowing windows and the unswept cellars
too. Where study in the light of ultimates revealed the need for change,
he fought for it, to free us, as he said, of "ancient cruelties," and to help
man "escape the barbarisms that the future pins to most human hopes."
He never forgot that the temple he served is the sum and symbol of all
human aspiration. When he proposed change, it was that the temple might
better and more truly serve the great dreams which give life and meaning,
beauty and power to our civilization. His writing and teaching, however
technical, were always focussed on the problems of ethical choice which
lie behind every conflict in social relations, He was ever conscious of the
necessity for logic — for "rigorous reflective thought," as he wrote, rather
than "hit-or-miss trial-and-error." But this emphasis in his work was not
mere aesthetic preference. It represented the knowledge he shared with
his father, whom he loved with such rare devotion, that civilization, rep-
resented by law, its central and all-embracing institution, is a value men
can save from evil not by their passive good will alone, but only by the
hardest kind of thought and struggle.

Felix Cohen was a teacher of power and purpose. He talked with his
students as equals. He left them with a renewed awareness of the issues
in law that spell the difference between life and death. For twenty-seven
years, his writings have been a force in the world's literature of legal
philosophy and jurisprudence. In my judgment his has been, and will
remain, the best balanced and one of the most creative voices in the
literature of what is loosely called American legal realism. In seeking a
just measure of freedom for the law makers, he never failed to give reason

xvi

INTRODUCTION

its due, and never sought to put impulse on the bench. In urging reform,
he never forgot the boundaries which history sets for all our efforts, nor
the risk of losing a large battle by winning a small one. He championed
the cause of ethics, and thus helped to correct a serious failing in the
American realism of the previous generation. But his stress on the ethical
content of law, and its primary importance, did not lead him to under-
value the role of theory — of logic, that is — in the legal process.

The third quotation from his preface is older still: "The day is short
and the task is great. It is not incumbent upon thee to complete the whole
work, but neither art thou free to neglect it." The greatest force in life
is the image and example of a good man. Felix Cohen was governed by
conscience. Every fragment of his work was part of "the great task" of the
prophet. He did not complete the whole work, for it will never be com-
pleted. But he never neglected it. On the contrary, he gave himself to
the cause of justice with a skill, a fervor, and a degree of selflessness which
those of us who watched and marvelled can never forget.

xvu

BOOK I
Logic, Law, and Ethics

What is a Question?

"WHAT is a question?" is a question which seems to have been almost
totally ignored by logicians. The problem is, however, about as important
for rational thought as the more common inquiry into the nature of
propositions, assertions, or judgments. And if the former inquiry does,
in its claim to significance, presuppose a solution, so too does the answer
to the latter. That is to say, in order to answer the former question we
must assume that it is a question, just as we must assume that any real
definition of a proposition is a proposition.

In neither case, however, does this consideration involve a vicious
regress. And if our question can be answered, the ultimate value of such
a solution to philosophy must be considerable. For it is obvious that
many apparent questions lack significance, that for want of recognizable
criteria of interrogatory significance much philosophical discussion con-
sists of a useless attempt to answer meaningless questions, that a good
deal of superficial and unjustified support is given to the skeptical or
inquiring attitude as opposed to the dogmatic because of a failure to
realize the intellectual responsibilities determined by the logical presup-
positions of significant questions, and that a cloud is thrown across many
philosophical problems by a failure to analyze the general relation of a
question to an answer.

A question is not, as some logicians imply by their treatment or lack of
treatment, simply a psychological provocation, on a par with pin-pricks
and miracles, to the formation of assertions. If it is true that questions are
valuable because they lead to judgments, it may also be true that judg-
ments are valuable because they lead to inquiries. Perhaps it is an undue
preoccupation with rats in mazes which leads some of us to assume that
thought is valuable only as a method of getting out of difficulties, a

Published in The M<mi$t»

LOGIC, LAW, AND ETHICS

"means of converting the dubious into the assured, and the incomplete
into the determinate/* l In our intellectual mazes there is wonder and
adventure more thrilling, frequently, than the cheese which lies outside
the cage. Those who have formulated the world's problems have more
often deserved the name "philosopher" than those who have settled
them. There is thus a certain superficiality in the ethics which regards
thinking as wholly pragmatic and concludes that the question is the
beginning of thought, important only as an instrument for attaining
the end of thought, the judgment. Some such valuation seems to be
at the basis of the logician's exclusive concern with propositions and
his indifference to questions.

But we trespass upon the domains of psychology and ethics. Whatever
the reason for its neglect, and whatever the value of its cultivation, there
is, in the analysis of the question, a virgin field for logical exploration.

The question has usually been described as a request for information.2
But while it is true that we generally ask questions in order to get in-
formation, it is also true that certain questions (e.g. rhetorical questions)
are presented with no intention of receiving answers. Other questions
(e.g. "What is the largest number?") have no answers. And, finally, the
idea that a question is a request for information does not in the least
explain the nature of questions. If I ask who discovered America, I am
none the wiser as to what I have done when told that I have requested
information. What information? Why, of course, information as to who
discovered America, In short, our desire to receive an answer when we
ask a question is, like our desire to be believed when we assert a proposi-
tion, neither universally present nor in any way constitutive of the mean-
ing or content of what we ask or assert. What is it, we must go on to
inquire, that we want believed? What is it that we want answered?

On another common view, a question is simply an ambiguous as-
sertion. But clearly, Spencer's definition of evolution, however ambiguous,
is not a question. If an ambiguous assertion is a sentence which has more
than one meaning, then a question is not such an assertion. For many
questions have only one meaning, and, on the other hand, many sentences

i» Dewey, Experience and Nature, p. 67* Professor Dewey, of course, is not responsible
for the ami-intellectuallst morals which have been drawn from this doctrine.

s, This is the explanation offered in Clauberg and Dubislaw, Sy&tematischcs Wdrter*
buck der Philosophic; Btsler, Hand*w$rterbuch der Philosophic; and Eisler, Wftrter*
buck der philosQphi$ch«n Begriffe* In the last named work the names of Bohano,
Natorp, Jerusalem,, Wundt* and many others are adduced in favor of this position. The
definition of "Frag*" given by Upp* is characteristic: "<&?r Wun$ch %u einem Urt&ll m

WHAT IS A QUESTION?

that have several meanings are not interrogative. If by "ambiguous as-
sertion" is meant some kind of proposition, then no such assertion can
be a question, since every proposition is either true or false and no
question is true or false.

Finally, a question, like a proposition, is not simply a psychic event or
a physical object — it is a logical entity. Marks on paper, sounds in the
air, activities of brains, and incidents in psychical history cannot be true
or false or have true or false answers. They are objects or events, to be
evaluated in terms not of logic but of ethics. It is only with the meaning
of these signs, the content of these thoughts, that logic is concerned.
Unfortunately we have not two words to denote these different entities.
Logicians distinguish between a statement (or judgment or declarative
sentence) and a proposition (or assertion). The one is a human act or a
symbol; the other, a logical entity, a meaning. But the word question
is used indiscriminately to refer on the one hand to the act of question-
ing or the verbal symbol, and on the other hand to the content of the
thought, the meaning that is entrusted to and communicated by a con-
ventional language sign. From the confusion of these two entities no
adequate consideration of our problem can emerge. We shall therefore
use the word question to denote exclusively the logical entity, and refer
to the act or symbol embodying this as an interrogation or interrogative
sentence. It is with the former entity alone that we are directly con-
cerned. And with these qualifications we return to our original problem,
"What is a question?"

A question, it is submitted, is simply a prepositional function (or
prepositional form). "What is the sum of 3 and 5?" seems to be identical
in logical content with '4x == 3 + 5." Whatever difference appears be-
tween the two phrases seems to reside merely in the psychological
connotations commonly adhering to the different styles of expression.
That is to say, we generally want an answer when we ask a question,
although we frequently put a prepositional function without any de-
mand that its values be supplied. But this matter of compulsive flavor,
in which our two expressions may find a shadowy distinction, does not
go to the logical content of either.

As a logical entity the question is the clear embodiment of the char-
acters by which the prepositional function has been defined. It is neither
true nor false, while its values (answers) are true or false. It is of the

LOGIC, LAW, AND ETHICS

form of the proposition, yet differing from the latter by the substitution
of a variable for some constant. Who, which, what, when, where, why, etc.
are the variables of every-day speech.

As in mathematical logic, these variables have a dual use. As "real
variables" they appear in the role of interrogative pronouns or adjectives.
As "apparent variables" they are termed relative pronouns or adjectives.3
Thus the existential affirmative, (3x).<£x, is simply "There is something
which has the property <j>" Just as the <£x, taken by itself, is a real
variable, a prepositional function, so the relative clause in our translation
is, when independent of the main clause, a question. The universal
affirmative, (x).<£x, or "Everything is a thing which has the property $"
may be similarly analyzed. So we may go through the uses of the
propositional function as an independent and as a dependent entity, and
find exact, though frequently cumbersome, translations in the questions
of common speech.

On this analysis, an answer to a question must be simply a proposition
which is a value of the given propositional function (or, by ellipsis, a
constant term which is a value of the variable in this function, — the
difference between these two views is unimportant for our present
inquiry),4 A true answer is simply a value that is true. We shall defer
further consideration of the relation of questions and answers to another
section.

There are some questions, finally, that do not possess in so obvious
a form as those thus far considered the character of the propositional
function. Such in general are the questions that contain no interrogative
pronoun or adjective (e.g., "Is Caesar dead?", "Caesar is dead?"). In what
way, we may ask, does the logical entity denoted by these sentences
differ from that which is denoted by the related affirmation "Caesar is
dead," Again we must dismiss from consideration such psychological
data as our desire for information in the former case and our belief m
the latter. Considering simply the content of our thoughts, we find, I
think, that in the former case there is no assertion, but simply the
ascription to a specified (but unasserted) proposition of an undetermined
truth-value. Whereas in the questions previously considered, a specified

3, For example, in "What is red?" what appears as a real variable and produce* a
question, a prepositional function, In "What is red is colored," we find an apparent
variable (what equals whatever), producing a universal proposition, The two uses of
what are more easily confused in mathematics and logic than in ordinary conversation,

3, The word information fat I think, very significant. Even In its purely psychological
aspect, indeterimnatlon or doubt is not, as is often maintained, a wavering between
different certainties, but the grasping of an incomplete form, a variable.

WHAT IS A QUESTION?

term was the variable and was denoted by a special interrogative word,
now the variable is the truth-value, or validity, of a proposition. There
is obviously no logical reason why there should not be an English word
representing the variable whose values are is and is not. Were that the
case, we should represent our question as "Caesar blankety-blank dead?" 5
But this fortunate grammatical omission in the English language should
not obscure the fact that questions of this sort are essentially similar
to those already considered, — that they are in fact a sub-class of preposi-
tional functions, in which a variable taking the two values truth and
falsity, or fact and not-fact (commonly represented, in the answer, by the
words yes and no) appear. The identification of questions with preposi-
tional functions is thus complete.

Ill

This process of translation is not entirely of one-sided value. For if it
offers us a clue to the logical nature of the question and, as we shall
later try to show, to the analysis of interrogatory significance, it provides,
on the other hand, an intelligible and clarifying interpretation of the
prepositional function.

To interpret "x is mortal," to mean, as Russell suggests, "anything
is mortal" is either a confusing misuse of terms or a downright fallacy.
"Anything is mortar* in common speech means simply "everything
(distributively) is mortal." In negative statements, anything frequently
means something. Thus "I do not think that there is anything which is
mortal" means exactly the same thing as "I do not think that there
is something which is mortal.'1 "Everything is mortal," and "something
is mortal" are both propositions, and neither is what we mean by "x is
mortal," which is not a proposition at all.

This misinterpretation of the prepositional function cannot affect the
validity of inferences which formal logic makes concerning the entity.
It has, however, seriously clouded the philosophical implications of an
exceedingly fertile concept. For when <£x is interpreted as "anything
has the property <£/' it is only natural to confuse the proposition which
these words commonly denote with the prepositional function they are
meant to denote.

Thus in the Principles of Mathematics, Russell refers to <£x sometimes

5, This "blankety-blank" Is what Professor Sheffer calls the "validational variable/'
See* the article "Notational Relativity" in the Proceedings of the Sixth International
Congress of Philosophy, My indebtedness to Professor Sheffer at other points in this
paper win be apparent to those who are familiar with his work.

LOGIC, LAW, AND ETHICS

as a proposition (p. 92, § 90), and at other times as prepositional function
(p. 13, § 13; p. 92, §90; p. 93, §92). In regard to the meaning </>xo^x,
(<£x implies ^x) the confusion is dizzying. On pages 38 (§41) and 91 (§ 89)
this is a proposition. On pages 38 (§ 42), 87 (§ 83), 89 (§ 86), and 92 (§ 89),
it is a prepositional function.6

In the Prindpia Mathematica (first edition), an attempt is made to
remedy this confusion. A new concept, intermediate between the prepo-
sitional function and its values, is introduced. This is the so-called
ambiguous denotation of a value. <£x is no longer a prepositional func-
tion, nor is it a particular value of a function. It denotes ambiguously
a specific value, but since we do not know whether it refers to <£>a, to
<£b, or to <£c, we can assert it when and only when every such value is
true. <£x, then, is equivalent to (x).$x, but not identical with it.

This doctrine, it appears, is based upon a fundamental confusion be-
tween the symbol and the thing symbolized. The prepositional function
is not an ambiguous or indeterminate symbol. It is a symbol of an
objectively indeterminate (i.e. variable) thing. But this new 0x is not a
definite symbol of an indeterminate entity. It is itself an ambiguous
symbol. As such it has no place in logic. Logic does not deal with the
symbols in which it is expressed. Expressions like "He is mortal," (where
the "he" has no visible reference), and "Interest comes," (where it is not
known whether the sentence is in English or Latin), as well as most
typographical errors and partially inaudible remarks, are strictly cognate
with the "assertion of an ambiguous member" of the values of a preposi-
tional function. As symbols they are no part of the subject-matter of
logic. The things they symbolize in their various interpretations are
either prepositions or prepositional functions, and there is no inter-
mediate logical entity to be described by the word "any."

In the second edition of the Prindpia Mathematica* Russell and
Whitehead show that what was previously asserted in the form of <j£»x»
(where ^ is a constant), may be asserted in the form of the universal

6. When we get rid of the word any and translate prepositional functions as qucs*
tions, the grounds for this confusion vanish. (X),<£XD^X» or "Everything which has the
property $ is a thing which has the property &" is a universal proposition, which can
no longer be confused with the propositional function, $x;>^3c» or *'What has the prop*
erty ^ if it has the property $?'* Russell's argument that the latter expressiew must
contain two variables — thus meaning, "What has the property ^ if what has the
property #?", a double question— is based upon a confusion of logic and typography.
The fact that the symbol x appears twice in the expression does not prevent the sign
from meaning the tame thing in both appearances, We might, if the type-setter were
willing, so arrange the expression that the x appeared only once. A similar confusion, it
may be noted* appears in the primitive proposition * 1,4 of the Prindpia Matfiematica,

WHAT IS A QUESTION?

proposition, (x).<£x,7 and state somewhat cryptically that the "assertion
of a propositional function" is no longer needed. We may infer, I think,
that the reason it is no longer needed is that it does not exist. One cannot
"assert" a question.

We shall not pursue any further the fatal errors consequent upon the
mistranslation of the propositional function in terms of "any," — al-
though an interesting chapter might be written on the manner in which
the ambiguous word "any" has been used to bridge the gap between
universal and existential propositions.8 It is sufficiently evident from
the preceding considerations that a propositional function cannot be
translated by a universal or existential proposition (through the use of
the word "any"), or by any expression that ambiguously refers to one
proposition or another. The difficulties and errors attendant upon any
of these interpretations are swept away instantly when it is recognized
that the propositional function is identical with the question, "x is
mortal," stripped of its text-book disguise, is simply the familiar ques-
tion, "What is mortal?" On the other hand, it is only by the converse
translation that we recognize the logical content of the interrogation,
the instrument and the resultant of judgment, the unfolder alike of
destiny and human ignorance.

The foregoing considerations may be viewed as defining question and
answer in the widest sense of the terms. Thus every propositional func-
tion is a question, although it may be indeterminate or insignificant, and
every value of such a function is an answer, although it may be false.
This terminology does not constitute an untoward strain of language,
since we do commonly apply these adjectives to certain questions and
answers. And in any case, it offers a clear verbal framework for the
essential problem that remains to be considered. What questions are
significant, and what answers are correct?

7. In ordinary mathematics a similar ambiguity of symbolism demands a similar
remedy, "Sin^ + cos*x = i" is generally construed as a universal proposition, and
4'sin*x= i*' as a question. The former expression may be interpreted, however, as a
question, and the latter as a proposition. In that case the question is indeterminate and
the proposition false. In order to get rid of this ambiguity it is necessary to distinguish
between the two uses of x (or, in translation, between the interrogative and the relative
pronoun). This can be done by writing universal propositions consistently in the form
(x),#x,~- in this case, (x).sin»3£ «f cos*x= i, and propositional functions in the form #x.
A change in the form of the equality sign sometimes serves the same purpose.

8. Cf. Principia Uathcmatka, pp. 19-20 (in both editions).

LOGIC, LAW, AND ETHICS

By a significant question, I mean a question to which some proposition
is the true answer. Two things are thus demanded for interrogatory
significance. In the first place, there must be at least one true proposi-
tion that is a value of the given prepositional function, and in the
second place, there must be not more than one such proposition. Ques-
tions which violate the former condition may be appropriately called
invalid. Thus "What cat has eight lives?",9 "Who discovered America
in 1491?", and "x-o = i" are typical examples of invalid questions. We
may, without committing any logical fallacy, ask such questions as:
"When did you stop beating your wife?", "Where is the highest good?",
"Where is the mind?", and "What are the ultimate simples of sense-
experience?" But we do fall into error when we assume, (as we usually
do when we ask questions), that such questions must have true answers,
and ignore the fact that to justify the validity of these questions it is
necessary to show that the person addressed has stopped beating his
wife, that there is a highest good, that the mind exists in space, that
there are elements of sense-experience which are ultimately simple, etc.

Every prepositional function lays down a range of significance de-
termined by the possible values of the variable term, and an inner
range of truth further determined by the constant terms of the expres-
sion. Thus the presumption of validity in a question is an assumption
that this latter range (and therefore the former range as well) contains
at least one member. Such an assumption will be true or false. When
false, any answer to the question must be incorrect. The chief usefulness
of questions (apart from riddles) arises from the fact that we can
sometimes know that such a value exists without knowing what it is.

The second condition of what we have called a significant question is
that it have not more than one true answer. Questions which violate
this requirement may be called indeterminate. Thus, "Who did what
when?'1, and "1*= i," are indeterminate and therefore non-significant
(in our defined sense of that word,— we do not mean to imply that
invalid or indeterminate questions have no meaning)* To such questions
we may indeed give true answers, but we can never give the true answer
to any of them. Thus in claiming significance or simply determinate-
ness for a given question, — and we do this whenever we attempt to

9, It might be supposed that "No cat haa eight lives" it a correct answer to thi»
question, But although this may be t very appropriate retort to an invalid question,
it i* entirely difierent in form from a real answer, being a negative universal, while
the values of the proportional function advanced are all particular*. An oversight at
this point tempti the inference that since one cat ha$ one more life than no cat, one
cat ha* nine livet*

WHAT IS A QUESTION?

show that one answer is incorrect by demonstrating that a materially
different answer is correct,— we are under the responsibility of showing
that not more than one true proposition is a value of our prepositional
function. The relevance of this principle to philosophical discussion is
obvious. "What is the first mover?" in a world where rest and motion
are relative to variable coordinates, is the type of a great class of questions
which lead inevitably to error when they are regarded as determinate.
The fundamental question of ethics, "What is the good?" has regularly
been treated as if it were (abstractly) determinate. Thus the more basic
question of whether good is a constant or a variable (similar to mine)
is never clearly faced and always unconsciously answered.

At this point a distinction of crucial importance must be made between
questions that are indeterminate and those that are ambiguous, apply-
ing the latter predicate to questions which have no uniquely determined
meaning. An indeterminate question we have seen to be a definitely
denoted prepositional function which has more than one true value.
But an ambiguous question is not, in the logical sense, a question at all.
It is rather a group of questions, or, more accurately, an ambiguous
symbol, a verbal matrix from which various questions may be derived.
In asking whether certain things are real or practical or right, I may
have in mind something quite different from what another person under-
stands by the words. What would constitute a correct answer to the
question in my mind may be a false answer or no answer at all to the
question in my neighbor's. But both of these questions may be determi-
nate and significant. Ambiguity, then, is something which attaches not
to the idea which a set of words suggests, (and it is with the analysis
of such ideas that we are concerned), but to the set of words itself in so
far as it suggests various meanings.

That words and sentences, declarative or interrogative, do convey
different meanings to different people and even to the same person in
varying circumstances is too obvious a fact to be labored, yet the ignoring
of this fact is perhaps the most fertile source of philosophical and non-
philosophical argument* Bertrand Russell somewhere says that no two
philosophers ever understand each other. If one may confess to an under-
standing o£ that remark, it appears to be very near the truth. Certainly
we shall never bridge the chasms about a human soul with our primitive
marks and noises, but if there is to be any rational intercourse between
man and man, we must somehow approach the ideal of unambiguous
speech. And to do this we must remember that the ideal is beyond the
language that pursues it,

Ambiguity is as prevalent and as dangerous in our interrogations as

LOGIC, LAW, AND ETHICS

in our statements, but the problems which it raises in this connection
are problems o£ thought and human intercourse in general, and as such
are irrelevant to a study of the logical nature of a question, except
in so far as they help to explain what we are not talking about.10 If, as
Professor Whitehead hopes, we shall find real propositions in the king-
dom of heaven, there too shall we find real questions. But it is the divine
task of the logician to examine these ideal entities that we may better
discern meaning and direction in the world of human thought. The
significant question is, like every object of reason, an abstraction from
actual experience.

The possibilities of analysis and classification which unfold with the
realization that questions are variables whose values are answers go far
beyond this problem of interrogatory significance. In particular some
light is thrown upon the nature of complexity in questions. In the days
when logic was thought of as a branch of ethics, the text-book writers
used to tell us that we ought to phrase our inquiries so as to ask one
question at a time. By this they meant, sometimes, that we should avoid
ambiguous speech, at other times, that we should not ask questions in
which assumptions are already implicit. The former condition is perhaps
psychologically unattainable, although there are important differences
of degree in its approximation. The latter is logically impossible, since,
as we have seen, although no question as such makes an assumption,
every question in so far as it demands a or the true answer does make
definite assumptions.

But there is a third more important dimension of complexity in
questions, namely that which relates to the number of variables in
a given propositional function. In common speech, questions containing
more than one variable are usually indeterminate, and such questions as
"Who's who?", "What's what?", etc, are frequently convenient precisely
because of their wide range of true answers. But there is no logical
correlation between complexity and determinateness or validity. We
may have double questions (i.e. propositional functions containing two
variables) which are valid and determinate,— e*g.» "Who discovered
America in what year?", "Did Caesar kill Brutus or did Brutus kill

10. The distinction between indetermfnatenew and ambiguity is paralleled by the
more obvious distinction between invalidity and m«tningl««ncii. A symbol which has no
meamng,~~eg.* Wittgenstein's creation, "Is the Good more or less Identical than the
Beautiful?"— is not, in the logical sense, a question, But a question may have no true
answer, In other word$» the predicates meaningful, meaningless, ambiguous, and un-
ambiguous refer to Interrogations and Interrogative sentences, but not to queiUoni.
Mctninp do not have meaning,

WHAT IS A QUESTION?

Caesar?" The same is true of questions of higher degree of complexity.
In the analysis of complex questions and of their relations to simple
questions and to answers, many points of interest are raised. Their dis-
cussion, however, would take us beyond the bounds of space and subject-
matter we have set.

Casuistry

THE WORD casuistry is commonly used in two senses. In the first place
it may mean simply the development of moral principles through their
application to special cases. In the second place it may mean applied
morality which has for its purpose the justification of questionable ac-
tivities and which proceeds by discovering subtle and hypocritical ex-
ceptions to general rules of conduct. That there is usually no distinction
drawn between these two uses of the word is a consequence of the
common belief that morality is incapable of rational treatment, being
either a matter of individual taste or a subject upon which some
authority, either God or conscience, has given us the last word, and
upon which further discussion is therefore useless and dangerous.

In its primary sense, as the particularization of moral rules, casuistry
is the natural culmination of ethics. Although treating of the application
of ethical judgment to individual cases, it deals also with general or
universal propositions, and such judgments can be distinguished from
those of general ethics only by a comparative narrowness of scope. Thus
the proposition that lying is bad would be regarded as ethical, and
the proposition that lying to save a friend's life is good would be re-
garded as part of casuistry. Casuistry, then, stands in the same relation
to ethics or moral philosophy as astronomy does to physics. In the
absence of an adequate general doctrine of ethics it must naturally
find itself more akin to pre-Ptolemaic astrology than to modern astron-
omy- To this internal dependence upon a discipline which has scarcely
emerged from the pre-seientific stage, one may attribute a good deal of
the dishonor into which the word casuistry has today fallen.

Casuistry has usually flourished at times when a generally accepted
system of ethics has demanded development along new lines because
of changing economic, political, or intellectual conditions. In the West
casuistry has operated particularly upon the transplanted stoic morality
during the early Roman Empire, upon the ethical code of the Pentateuch

Fubliahed in Encyclopaedia of the Social Science 1930.

CASUISTRY

in the Talmudic and post-Talmudic explication of the exiled Jews and
upon the received Christian morality during the period when the agri-
cultural organization of European society was breaking down. In the
Summae casuum conscientiae (Casebooks of conscience), written from the
thirteenth to the seventeenth centuries and meant especially for use in
the confessional, the process of particularization in ethical doctrine was
carried to an extreme point. Since Kant, however, there has been a
strong tendency, outside of the Catholic church, to restrict academic
inquiries in morality to a more general and abstract plane.

Close analogues of these casuistical processes are to be found in the
development of Roman law, which from the fifth century B.C. to the
sixth century A.D. was considered to be essentially an interpretation of
the Twelve Tables — and as well in the judicial development of American
constitutional law. Such decisions as those ruling that the "due process"
clause of the constitution forbids the legislative limitation of working
hours for bakers to ten per day but does not forbid the limitation of the
miner's working day to eight hours suggest that there is nothing
peculiarly mediaeval, religious, or scholastic in the difficulties and con-
comitant dangers of casuistry.

Today a growing appreciation of the dependence of ethical values
upon factual conditions and a general disregard for the element of
value which cannot be stated in terms of existence have relegated
modern casuistry to an unavowed place in the literature of the social
sciences. Except for the fact that ethical discussion is nominally dis-
avowed, psychologists who tell us how we ought to bring up our children,
economists who tell us how we ought to adjust the currents of distribu-
tion, political scientists who describe our duties to the state, and jurists
who tell us how people and, in particular, how judges ought to act, are
all continuing a discipline which is coeval with man's command over
rational method and interest in conduct.

The methodology of casuistry has commended itself to modern law
teachers and sociologists as in other centuries to the Jesuits and
Talmudists, because of the ease with which concrete problems are
assimilated and vitalized in the student's experience. The difficulties of
casuistry on this plane are, in a measure, the difficulties of all scientific
method. On the one hand, those who have looked upon the decision of
particular cases as a merely mechanical application of general principles
have run into (or illicitly evaded) the logical difficulty that particular
conclusions cannot be derived from purely general premises— a difficulty
which shows itself in a question that is always relevant and usually
critical and never answerable on the sole basis of general rules, namely:

LOGIC, LAW, AND ETHICS

"Which of several admitted principles is, in the light of all circum-
stances, most applicable to this case?" On the other hand, those who
have regarded the decision of special cases as a problem independent
of general principles — and students of the case method have regularly
professed a nominalistic disregard of abstractions — have run into the
more serious difficulty that no unified science and no inference is possi-
ble on the sole basis of individual cases. Any two cases, in ethics as in law,
can be distinguished, and a refusal to enter the realm of abstractions in
an open and critical spirit for the valuation of different "elements" of
"principles" has led either to the differentiation of cases on trivial
grounds or to the subsumption of cases demanding different treatment
under a single rubric. It is on these points that the most important
criticisms have been directed against casuistical method, whether em-
ployed by Greek sophists or by students of the common law, by Jesuits or
by the religious teachers of the Protestant, Jewish, or Mohammedan sects.

Modern Ethics and the Law3

ETHICS FOR LAWYERS AND JUDGES

The term "ethics," to many lawyers and judges, carries the flavor of a
trade code. The precepts of "legal ethics," like the precepts o£ those moral
codes drawn up, from time to time, by dentists or real estate dealers,
treat of the common questions that arise in the course of a tradesman's
dealings with clients.

These questions may become rather involved when more than one
client deals with the same tradesman, or when more than one tradesman
deals with the same client. But the basic purpose of these codes is simple
enough. Private profit is the chief aim of any trade. Some types of con-
duct practiced by certain members of a trade lessen the income of other
members more than they add to the income of those who indulge in these
forms of practice. Such types of conduct are thought, by most members
of the trade, to be bad.

Price cutting is as clear a case as any. What the public gains through
price cutting the trade as a whole loses, although, to be sure, some mem-
bers of the trade may lose less than others and some may even gain.
Price cutting, in its many forms, is therefore thought to be a prime evil,
against which any trade will protest in language laden with the solemn
weight of ethics.

Other trade habits that tend to decrease the total profits of the trade
demand the same treatment. One of the chief assets of many trades is
the respect and trust of the public. To squander this asset without gain-

i. In view of the fact that my published work on this subject has called forth, from
an esteemed judge, the phrases, "mental gymnastics," "pedantic quibble," etc. (Sec
Knox, Book Review, 5 Brooklyn L, Rev. 366 [1933]}, I have tried in this paper to restate
in simple language certain points which are more fully treated in the volume re-
viewed. [Ed. note: The "simple language" referred to meant words of one and two
syllables only, a restriction in writing that caused "mental gymnastics" and much
amusement to the author,]

Published in Brooklyn Law Review, 1954.

LOGIC, LAW, AND ETHICS

ing a fair return injures the trade as a whole. To give away trade secrets,
to decry or obstruct the work of a fellow tradesman, to break faith with
a client in a manner that reflects upon the entire trade, all these acts are
likely to lessen the total income of the trade. They are therefore con-
demned by the trade as a whole, unless group feeling within the trade
is too weak to call forth group action. Since the group feeling of lawyers
is very strong, the lawyer's code of ethics is somewhat more detailed,
and conforms rather more closely to the needs of the trade, than the more
sketchy trade codes of other tradesmen. But the fact remains that legal
ethics centers about the problem of how to secure a larger income for
lawyers.

The announced precepts of legal ethics have little to do with the basic
values of life or with the basic problems of the present social order.
Indeed many lawyers of the highest standing are inclined to believe that
there are no basic values of life or basic problems within the present
social order, and that thought on such matters is either useless or worse
than useless. From this point of view, there can be no sound basis for
passing moral judgments upon the work of lawyers except in terms of
the canons of legal ethics. To judge a lawyer's worth in terms of the social
values which he serves to uphold or defeat is felt to be neither just nor
polite.

Even those lawyers who do believe that life contains basic values, and
that the social order which happens to exist has some defects and presents
some problems, are likely to feel that these concern the lawyer only in
the way they concern other people, and that the lawyer, as such, has no
civic duties other than those which fall equally, like the rains of heaven,
upon the lawyer's neighbors. Indeed the lawyer who carries to the court-
room the woes of a troubled world is not likely to prove as fast a runner
as a fellow craftsman who enters the race for "success at the bar" more
lightly equipped.

Judges, no less than lawyers, are prone to view the wider problems of
ethics as matters beyond their proper ken, For, in the first place, the
judge is apt, In this country at least, to bring to his task a lawyer's
training and the views to which that training leads. The lack o£ moral
doubts, which h so helpful to the lawyer in practice, i$ thus carried over
to the bench. And this freedom from moral doubts is most surely induced
and nourished by a lack of concern with ethics, for nothing so gravely
threatens the moral dogmas by which we live as the study of ethics.

There is no doubt a second factor which leads judges away from
the study of ethics. Judges want their conduct to be free not only from
their own doubts, but also from the doubts of others. The judge is apt

MODERN ETHICS AND THE LAW

to feel that ethics is a risky affair, and that the less he has to do with
questions about which men have argued for many ages the less likely will
people be to cast doubts upon the judgments he utters. The slot machine
doctrine of the judge's function, which teaches that judgments emerge
from judges as gum comes forth from a vending machine, implies that a
judge's beliefs about ethics have nothing to do with his work on the
bench. This doctrine offers much aid and comfort to judges in moments
of social stress. There is no use in kicking at a slot machine. Complaints
must be referred to the owners. Public protests against the things that
judges do or say must be referred to the proper law making bodies of
state or nation or, when these bodies refuse to take the blame, to the
Founding Fathers, who, being dead, pay even less heed to public clamor
than do living judges. Why, indeed, should any judge defend his judg-
ments on grounds of ethics when it is so easy to take refuge from the
shafts of moral protest by hiding behind the doctrine of the slot machine?
Ethics, shunned alike by lawyers and judges, looks today for friends
among the students and teachers of law. But they are, in the main, too
busy to be disturbed. Some of them are busy counting cases. Others are
trying hard to find out where cases come from and where they go to when
they leave the courtroom. There is a widespread feeling among legal
scholars that until this task is finished it is too early to pass judgments
of good and bad upon legal cases and legal doctrines. Those who take
this view are not disturbed by the prospect that the legal cases and
doctrines to which they have addressed their program of research will
very likely die of old age long before the research is finished. What is
perhaps of some weight in molding the currents of modern legal research
is a belief that law can attain the prestige of science only by showing
a thorough contempt for judgments of value. There is no room for ethics
in the oldest and most advanced science, physics. Why should those who
seek to build legal science concern themselves with ethics? Science feeds
upon facts. And what have facts to do with moral values?2

THE DECLINE OF ETHICS

To explain the sources of that contempt which those who practice or
study the law feel for the study of ethics is not to show that this con-
tempt is groundless. Indeed much that teachers of ethics have said in
the last few hundred years would greatly strengthen the current belief

2. I have tried to answer this question by showing that values are facts, in "The
Subject Matter of Ethical Science/' 42 Internal. Journal of Ethics 397 (193?). And see
Ethical Systems and Legal Ideals (1933), c 3.

LOGIC, LAW, AND ETHICS

that ethics has no useful gifts to offer either to the practice or to the
science of law. Blame for the modern divorce between law and ethics
does not lie wholly with lawyers, judges, and students of law.

The fact of the matter is that ethics, in the western world, has never
quite gotten over a bad case of stage fright which it suffered at about the
time of the downfall of the feudal system and the birth of modern
commerce and science. Long after these events ethics has spoken only
in whispers, as if afraid that its commands might be heard by those who,
in any case, would not obey. It is no wonder that the halls have emptied.

If ethics is chiefly concerned with the problems that teachers of ethics
have discussed during the past three or four hundred years, that is to
say, with the conduct of a man towards his next-door neighbor and
towards his next-door neighbor's wife, with those aspects of human con-
duct that endure unchanged through the decay of social systems, and,
on the whole, with questions of manners rather than with basic ques-
tions of social values, then ethics has little to offer to those who practice
or study law. For the basic problems of the law today involve social
forms and patterns that cannot be compressed into the narrow confines
of what may be called "Sunday School ethics." Only an ethics that
squarely faces the problems which modern commerce and modern science
have brought into our world can offer any worthwhile gifts to modern
law.

The domain of ethics has not always been as narrow as that to which
modern moral discourse has been chiefly confined. The social order in
which we live today, in which certain rather petty questions are thought
of as ''moral" and other questions of conduct, such as the question of
how one ought to vote or spend his money or decide a case at law, arc
thought of as "not moral," would no doubt seem very strange to those
who have lived in a more stable and compact world.

In the Books of Moses, for instance, all the basic problems of human
conduct that a given social order raised are dealt with as parts of the same
life, subject to the same sanctions, and marked by a constant set of
human values. There is no hint that problems of hygiene are less "moral"
than problems of sex> or that a man's conduct ceases to be moral when it
affects vast numbers of his fellows. The moral system which the Books
of Moses reflect is a system which seeks to guide men in the fields of law,
art, commerce, hygiene, and all other realms in which men seek to
achieve the valued ends of life. All conduct, of course, involves questions
of technique, as to which such a moral code may have little or nothing to
say, but all conduct also involves a choke of human ends* and to that
extent falls within the field of a complete moral code.

MODERN ETHICS AND THE LAW

What is true of the moral code of the Hebrews is no less true of that
which appears in the writings of Plato. To Plato the notion that art, for
instance, might have a purpose of its own ("art for art's sake") foreign to
any standard of the common good, and that the question of what an artist
ought to do as an artist was any less a moral question than the question
of what he ought to do as a father, or husband, or friend, seemed quite
devoid of force. If certain types of painting or sculpture or music induce
men to live worthless lives, they are, in Plato's view, bad, and the artist
who pursues such forms of art must be punished or exiled from a good
state. Trade practice, whether of artist or of lawyer, offers no haven of
refuge from the winds of moral doctrine.

This view of a moral code which pervades all aspects of life is basic in
the Christian worldview of the Middle Ages. The Church teachers treat
in great detail such problems as the problem of the fair price, not only
with respect to payment for the use of money, but also with respect
to all other forms of trade. Not only customs of trade, but also habits
of thought, the pursuit of art, the use of wealth, and the duties of rulers
to subjects and of subjects to rulers are clearly conceived as fields of
human conduct which must be subject to a single set of social values if
men are to avoid endless conflict and chaos in their common life.

Each of these great moral codes faces clearly the basic problems of a
given social scene. Each looks upon the whole field of human conduct
as the proper realm of ethics. There is no hint in any of these worldviews
of the modern "Sunday School ethics" which restricts its outlook to a
small part of men's day-to-day life and leaves major problems of conduct
to be dealt with in terms that are supposed to be non-moral. None of
these worldviews would permit a lawyer or judge to deal with basic
problems of human conduct while shutting his eyes to the doctrines of
ethics which had been evolved in an attempt to throw light upon these
problems. In each of these systems of thought, the jurist must be a stu-
dent of ethics and may be a teacher of ethics.

It is not my purpose to trace the many factors which have led ethics
to its present low estate in the domain of thought. It is enough to men-
tion but two of these factors: the rise of modern commerce and the
growth of modern science.

Modern commerce, that is to say trade and travel, helped to break
down firmly entrenched moral beliefs. The cargoes of commerce have
always contained seeds of moral revolt, Xenophanes, finding that the
people of Thrace worshipped gods with blue eyes and yellow hair and
that the people o£ Egypt worshipped dark-skinned gods with curly hair,
inferred that if oxen had gods their gods would have horns. It is not

LOGIC, LAW, AND ETHICS

likely that such a thought would have occurred to Xenophanes if he had
lived and died in a village where men do not travel and do not come into
close contact with diverse moral codes and faiths.

Along with the growth of modern commerce went the rise of modern
towns and cities. The city has always been a center of "strange ways,"
of "vice," of new manners, and of new ways of thinking. In the cities
arose the challenge to the older mores of feudal state and Church.

This challenge was confirmed by the rise of science. Science, while it
brings new knowledge, at the same time reveals the limits o£ our
knowledge and strengthens the spirit of doubt. Every new law of science
not only reveals the mistakes we have made in the past, but also raises
a host of new problems that we cannot yet answer and points to new
fields for research.

No branch of learning within the domain of science can pretend to be
immune from doubt and from change. But ethics, long rooted in sacred
texts, seemed to demand complete freedom from doubt and change. So
long as this view of ethics endured, the teachers of ethics were forced
to retreat from all those fields of human conduct in which science might
have something new and useful to say.

So it comes about that when science enters the field of hygiene, ethics
retreats and ceases to deal with questions of health, sport, and disease.
When science attempts to account for prices, wages, work, and wealth,
these subjects are renounced by the teachers of ethics. As matters of state
come within the province of science, these topics drop out of the books
and lectures of moral teachers.

The end of this process is the complete divorce between ethics and
all studies of human conduct which invoke the aid or the name of science.
The divorce between ethics and law is only one aspect of this wider fact.

The blind alley which ethics thus reached appears most clearly in the
teachings of Kant. For Kant, science deals with a world that contains
matter, a world of cause and effect; ethics must therefore, if it is to
remain pure and free from the doubts that science brings, deal with a
wholly distinct world, a world without matter, without cause, and with-
out effect

The problem remains: Where does such a world exist? Kant*s answer
is that this moral world, this world above science, may be found in the
domain of the human will, which is supposed to be without cause and
without effect. If one wills what is right, he is moral, and this Tightness
depends not upon the effects of conduct on the lives of other people but
rather upon an assumed logic This logic is supposed to show that an
evil will defeats itself, and the final test between good and evil, between

MODERN ETHICS AND THE LAW

right and wrong, is supposed to be a matter of simple reason, having
no basis in human desires, human sorrows, human joys, or any of the
results of human action.

This view of Kant, which raises logic to the role of a supreme moral
guide, is a complete answer to the search for a place where ethics may be
secure from the slings and arrows of science. But ethics pays a high price
for such freedom from doubts. To leave all problems of cause and efect,
of human desire and pleasure, of the forces that mold human lives and
social systems, to one side, in the effort to rise above all the doubts to
which science is heir, is to end at last in the Sunday School view of
ethics. The province of ethics comes to be seen as a morbid searching
of conscience for feelings of guilt. It is a long retreat to this narrow
hermit's cave from the broad fields of human work and play, art and
thought, the use of power and the use of wealth, over which ethics once
wielded its scepter.

Today many of us are a little ashamed to use the words "good,"
"bad," "right/' "wrong/' "evil," and "duty" (except in a narrow legal
sense) in dealing with the basic problems of law and the social order.
Lawyers and judges, if they think of ethics at all, outside the narrow
canons of "legal ethics/1 are likely to conceive of ethics as dealing chiefly
with the problem of sex. A "decent" book, a "moral" man, and a "good"
woman attain their moral titles by meeting certain moral standards in
the single field of sex. If judges and lawyers sometimes think of ethics as
going somewhat beyond the field of sex, it is only to take in a few simple
types of conduct, such as murder and deceit, upon which conscience is
still supposed to ofier data that science cannot deny or alter.

But while ethics has been in constant retreat from the growing domains
of science, those who speak in the name of science have not refrained
from passing all sorts of moral judgments upon men's actions.

Thus even Dr. John B. Watson, who regards ethics as an outworn
fetish, offers us, in the name of science, many moral rules as to how
we ought to bring up our children. He thinks, for instance, as Plato
did, that mothers and nursemaids ought not to fondle babies as much
as they do.

"Treat them as though they were young adults," he tells us. ". . . Never
hug and kiss them, never let them sit on your lap. If you must, kiss
them once on the forehead when they say good night/' 3

Now it is clear that these sentences do not describe human conduct, but
rather prescribe moral rules as to how we ought to behave* I am not
concerned, for the moment, with the question of whether Dr. Watson's

5, John B, Watson* Psychological Care of Infant and Child (1928), p. 81.

LOGIC, LAW, AND ETHICS

ethics reveals a great insight into the values of life. I am concerned only
to show that those who deny ethics, in the name of science, do not always
avoid making moral judgments. In fact one may be unkind enough to
suspect that those who attack ethics, in the course of making moral
judgments, are chiefly concerned to deprive those who do not agree with
these moral judgments of the right to reply to them.

It is clear that those who pretend to derive moral judgments from the
facts of science have somehow slipped a doctrine of ethics into their
science. If they are not clearly aware of the doctrine, so much the worse
is the doctrine likely to be. But false ethics is still ethics, and those who,
in the name of some science of human conduct, offer advice on how we
ought to bring up our children, or how we ought to treat law breakers,
or how we ought to control or fail to control the exchange of goods and
labor, are in fact dealing in ethics, whether they know it or not.

Ethics, having all but vanished from its own precincts, has bobbed up
under assumed names in all the realms of social science. The law faces
ethics in a hundred guises when it deals with any of the current prob-
lems of the social order.

THE NEW OUTLOOK IN ETHICS

It is the task of modern ethics to bring all value judgments into an
ordered system. This task has been frankly faced by such recent writers
as G. E. Moore, Ralph B. Perry, and DeWitt Parker,4

Modern ethics (if I may assign that phrase to this new current in our
moral thinking) flatly rejects the notion of Kant that moral judgments
can be applied only to human will and that the human will must be
judged to be good or bad apart from the effects of a man's conduct upon
the lives of others. At the same time, modern ethics rejects the notion
that tests of right and wrong can be conceived in terms of pure logic or
reason. Questions of right and wrong are seen to involve questions of fact
which must be answered by some science. What will the effects of this or
that type of conduct be? That is not itself a question of ethics, but it is a
question that must be answered In advance of any moral judgment upon
human conduct.

In essence, there is nothing new in the modern viewpoint with respect
to the scope and the data of ethics. To view all of life's values and to at-
tempt to relate these values to each other in a single system is to return
to the basic moral outlook of the Books of Moses, the teachings of Plato,

4, Sec C, E, Moore, SMcs (*$ii); R**pfc Barton Perry, The MerQl £roraomy
DeWitt Parker, Human Kalutf

MODERN ETHICS AND THE LAW

and the Church creed of the Middle Ages. The attempt to bring into the
service of ethics all human knowledge that throws any light upon the
causes and effects of human actions and passions is also far from new. But
there is at least one respect in which modern ethics differs from the ethics
of all other epochs. That is the view which modern ethics takes of the
source of moral knowledge.

Modern ethics seeks to attain moral knowledge through the methods of
science. Moral thought which has not made its contact with science seems
always to proceed as a search for a master key, a final dogma from which
the answers to all moral problems may be inferred. But science rejects all
dogmas. And modern ethics, which seeks to attain the status of a science,
likewise rejects all dogmas.

Doctrines of ethics thus come to be viewed, like the doctrines of science,
as the end result, rather than the starting point, of wisdom. The data of
ethics are the concrete moral facts of the day-to-day world, the good things
and bad things that we see done, enjoyed, or suffered, and approve or
condemn. Perceived values are brought into a system, in modern ethics,
in the same way that perceived facts of color, weight, size, etc., are brought
into a system in the science of physics. The moral laws thus arrived at are
not beyond doubt. They are all, very likely, untrue in part, and they may
be refined and brought closer to the truth as the science of ethics grows in
stature. The method of science provides a constant means of growth.

Ethics can return to its once basic role in human life only by giving up
its horror of the language of science, its fear of the skeptic's doubts, its
contempt for piece-meal truth and for growth by trial and error methods.
Modern ethics boldly asserts its right, and frankly faces its duty, to deal
with value judgments in all fields of human conduct, but it does this in the
humble spirit of science.

What value, if any, has this modern view of the scope and method of
ethics for the living law?

ETHICS AND LOGIC IN THE LAW

A good deal of the writing of judges, lawyers, and students of law in-
vokes the name and prestige of logic, or reason. Judges often claim to
derive judgments from the holdings of past cases by a process of logic.
Their critics often attempt to appraise these judgments in terms of logic
rather than in terms of social values,

Recent studies, both in logic and in ethics, have made it clear that any
claim that "logic supports" any legal rule (or any other judgment about
human conduct) must be false. Rules of logic can no more produce legal

LOGIC, LAW, AND ETHICS

or moral doctrines than they can produce kittens. On the whole, it is safe
to assume that those legal doctrines that claim to be the offspring of logic
are either not proud or not aware of their real parents.

The study of logic may show that certain supposed proofs of the need
for certain rules or judgments are not valid, but the fact that certain proofs
advanced to support a given cause are not valid does not show that the
cause is bad. Logic offers its powers on equal terms to good men and bad
men, to good rules of law and bad rules of law.

When it is said that logic dictates a certain rule or judgment, it is
clear that some premise of ethics, which may in fact support the rule or
judgment in question, has been falsely viewed as a rule of logic. Now this
is more than a harmless error in the use of terms. To say that a given
judgment is required by logic is to affirm that no other judgment could
have been given by any man possessed of reason. To affirm this is to
proscribe all doubts as to the moral soundness of the judgment. On the
other hand, to say that the judgment follows from a given moral premise
is to raise such doubts to the status of a real challenge, for what the court
accepts as a moral premise may very well seem untrue to lawyers and
laymen.

Modern ethics claims as part of its own domain every judgment of
"good/* "bad," "right," "wrong," "ought" and "ought not." Problems an-
swered in these terms are problems of ethics, not problems of logic.

I suppose that those who defend concrete rules and judgments in the
name of logic often mean to say that past cases give rise, as a matter of
logic, to certain rules of law which govern future cases. But are legal rules,
in fact, derived from past cases on a basis of logic alone? The task of the
law student would be much simpler if this were the case. In order to derive
a rule from a given case, or even from a whole series of cases, one must
decide that certain facts which appear in these cases are crucial, and that
hundreds of other facts involved in these cases had no effect upon the
final judgments and may be ignored in drawing a rule from these judg-
ments. What is needed for this task is not only clear thinking but a sound
sense o£ values. What moral a court ought to draw from past cases is
always a moral question. It is the function of ethics to bring to bear upon
such questions a sound seme of human values. Logic cannot take the
place of ethics in this service,

ETHICS AND SCIENCE IN THE LAW

The prestige of science, like that of logic, has been loosely invoked in
support of legal rules and judgments. What is the proper role of science
in the service of the law?

MODERN ETHICS AND THE LAW

Modern ethics begins by noting that many of the problems which
have been answered in the name of science are in fact moral problems.
A science which seeks to describe human conduct, or any aspect of such
conduct, cannot give us rules as to how we ought to behave. Such rules,
fixing standards for human conduct, are moral rules, even if those who
utter them speak in the language of science.

Science, then, in so far as it does not assume moral standards, cannot
provide us with legal rules. The function of science is rather to throw
light upon the real meaning of legal rules by tracing their effects
throughout the social order. To appraise or value these effects is the
task of ethics.

To take a concrete example, the legal question of when a man should
be deemed insane is not a question that science can answer. Science
may explain the facts in a given case and throw light upon their causes.
But to decide that a man should not be punished for an offense because
of his mental state requires a moral judgment as to the ends of penal law.

Is the function of such law the reform of the accused? Or is it to offer
warning to others? Is it simply revenge? Or is it, as Tarde thought, the
more subtle function of serving as a moral drama to impress a certain
code of conduct not simply upon the mind of the accused, but even more
upon the minds of judge, jury, and lawmaker, and the public whose
agents these chief actors are? Which of these moral ends we accept as
sound will clearly have some effect upon the question of whether a given
class of persons is to be deemed sane or insane, in the eyes of the law.
The wisdom of the doctor will not suffice to dispose of this problem.

Modern ethics deals with the data of human conduct not as a rival to
science, but rather as an ally of science. The problems of the law have
always a background of social facts, which it is the task of social science
(or common sense, which is, in the main, science mellowed a hundred
or a thousand years) to explain. But the problems of the law have also
an aspect of value, which involves a moral judgment imposed upon the
social facts. Neither science alone nor an ethics that ignores the data of
science can offer a valid test of the goodness or badness of law.

MORAL DOGMAS IN THE LAW

Despite the attempt to derive all sorts of legal rules from the dictates of
logic or the laws of science, the law has never been wholly freed from
an avowed moral basis. What light can modern ethics throw upon the
moral doctrines which the law invokes and seeks to enforce?

It is still the fashion, in the law, to refer to conscience as the final
source of moral knowledge. Conscience is supposed to tell us that a man

LOGIC, LAW, AND ETHICS

ought to do what he has promised to do. Upon the simple basis of this
supposed dictate of conscience, many legal scholars have sought to defend
or attack special rules of contract law. In no study of the law of contracts
that I know has any attempt been made to show the extent to which
people rely upon the words of others, in given realms of human affairs,
or to appraise the social costs of broken faith. From the moral dogmas of
the law, founded upon the firm rock of conscience, there is no appeal
to facts.

From the standpoint of modern ethics, conscience cannot be viewed
as a final source of moral wisdom. Lawyers do not need to be told that
conscience varies among men no less than the size of the human foot.
Conscience is largely a product of the moral teachings of parents, nurse-
maids, teachers, friends, and judges.

To say this is not to deny that men have some sense of values, and
that what we call conscience contains the germs of moral truth. Modern
ethics does not seek to throw conscience overboard, but rather attempts
to refine the supposed dictates of conscience, just as physics refines men's
judgments about the movement, weight, and color of bodies.

Physics could not exist if men were not able to perceive the passage
of time, the size, color, and motion of bodies, etc. So, too, ethics could
not exist if men had no sense of values. But physics cannot accept as
beyond doubt any belief about color or motion, no matter how widely
held. It is the task of physics to make us aware that what we sec is not
always the same as what we think we see. So, too, ethics cannot accept
as beyond doubt any belief about life's values, no matter how widely
held. It is the task of ethics to make us aware that what we value,
in life is not always the same as what we think we value. One may
perceive goodness in given events without knowing what it is that makes
the events good, without knowing whether the effects of these events will
also be good, without knowing whether other events, alike in certain
respects to the events perceived, will also be good. To attain such
knowledge is the central task of ethics.

Modern ethics regards conscience as the starting point rather than the
end or substance of moral wisdom. The dictates of conscience involve
the subject matter of ethics. This subject matter can be attacked with
the methods of science. The nature of objects that we approve or con-
demn can be defined by science, and we may thus come a little closer
to knowing what it b that we value. The effects of human conduct can
be forecast, to some extent, by science, and we may thus be able to
project a moral judgment into the future, to link a judgment about the
future with a judgment about the present, and thus to balance values
that conflict and bring some system into our moral beliefs,

MODERN ETHICS AND THE LAW

Applied to law, this point of view may serve as a challenge to en-
trenched moral dogmas that enslave the law. The moral basis of law
is not a set of moral dogmas but a method of testing all legal doctrines
in terms of their effects upon human life.

THE PROPER SCOPE OF LAW

Modern ethics is, above all, matter-of-fact. Dealing with the common
problems of human life, it must renounce the pretense of mystic learn-
ing. Facing the profound conflicts of thought and purpose within our
social order, it cannot pretend to remove all doubts and conflicts with
magic words. Using the methods and the data of science, it must attempt
to build up moral rules in a piece-meal way, by testing every moral rule
against moral judgments upon concrete cases,5 and by fitting every moral
judgment into its proper context of social facts.

This matter-of-fact spirit of modern ethics, far removed from the
spirit of those moral codes that find a final answer to all questions in
sacred texts or in the faultless dictates of reason or conscience, may bring
a new approach to one of the oldest problems of the law.

The problem of the proper scope of law has often been dealt with as
if it were a problem in pure logic. First the word "law" is defined.
Then it is inferred that the "nature" of law excludes from the field of
legal control certain types of human conduct (for instance, under cer-
tain doctrines, all human thought or intent which is not acted upon,
and, under other doctrines, the way a man spends his money). In all
this there is no contact with facts of any sort. The proper scope of law
is supposed to be shown by pure reason or logic, rather than by any
study of the effects of law upon human lives and the value of these effects.

All this would be harmless enough nonsense if those who advance
doctrines of "the proper scope of law" in the name of reason or logic
did not attempt to make their doctrines come true by damning all at-
tempts to bring new aspects of human life within the realm of legal
control. The trouble is that men use the current statements, "It is not
the purpose of law to make men good," "It is not the function of law to
engage in charity," "It is not within the proper province of law to save
a man from his own mistakes," not simply to describe the law as it is,
but rather to oppose threatened reforms in the law.

Modern ethics rejects as an empty play upon words any attempt to
derive a doctrine of the scope and function of law from a study of the
meaning of the term "law."

If the law can do any good at all, in any field of life, to do such

5. See F. S. Cohen, "Casuistry*' [above, p. 14).

LOGIC, LAW, AND ETHICS

good is part of the moral task of law. The question is simply, "Can
the law do any good?" And this is a question that must be answered
in terms of some system of moral values and in the light of certain
brute facts that cannot be derived from logic or ethics. To what extent
can certain rules of law be enforced? How many machine guns are behind
the bench? How much will it cost to enforce this or that law, and how
much money does the state command? In terms of such facts, one may
venture a doubtful answer to the question of whether or not an attempt
to secure some new social value through law will be likely to succeed.
Apart from this simple, matter-of-fact question, the whole problem of
the proper scope of law is an unreal question to which all answers are
nonsense.6

VALUE AND BEAUTY IN THE LAW

From the viewpoint of modern ethics, law is a social tool. That is to
say, law must be valued in terms of what it does in our social order, in
terms of its effects upon human lives. If a given legal rule helps men
to lead good lives, it is good; if it helps men to lead bad lives, it is bad.

To most laymen, as to many lawyers, this may seem a truism. But
in fact the habit of viewing legal rules simply as means to certain social
ends has never made very much headway in modern legal thought. For
the lawyer is a craftsman, and, like other craftsmen, he is apt to feel
that his art has its own standards of beauty. These standards seem at
times to take the place of an ethics.

The craftsman who takes pride in his work is likely to look upon the
products of his labor as objects of art, which are to be appraised not
by the judgment of laymen but by the judgment of those trained in the
art. The modern painter may betray a proud contempt for those whose
lack of training prevents them from seeing the highest type of beauty
in abstract planes and color schemes. So the cook may resent the notions
of diet which turn the public from his noblest products, And the lawyer
is prone to regard as foolish or depraved the layman's view that the
goodness or badness of law Is simply a function of its social effects upon
human masses. "Let justice be done though the earth perish/* rings on
a much nobler key.

Justice* thus conceived as something apart from the concrete values of
human life, becomes a special type of beauty. Lawyers' law that is made
by judges for lawyers and law students makes its prime appeal to a
trained sense of order and balance. Perhaps the legal rule which shows

6. Cf. F. S. Cohen, "What is a Qucidon?11 (above, p. 3],

MODERN ETHICS AND THE LAW

this beauty to the highest degree is the old law of "an eye for an eye
and a tooth for a tooth." That the plotter should fall into his own trap,
that murder should be punished by death, that a liar should be
"estopped" from telling the truth in his own defense, these things appeal
deeply to a lawyer's sense of beauty. So, too, do the refined legal doctrines
which seem to bring order out of a chaos of confused holdings. Even
the language of hardheaded lawyers often shows more respect for the
canons of balance and the signs of a word juggler's skill than for the
needs or wishes of a simple client.

Of course, in legal practice, the aesthete is to some extent swallowed
up in the tradesman. Clients do not have very much patience with the
subtle beauties of legal doctrine. It is only in the free thought of law
teachers and law students that the human needs of a client wholly
vanish from a legal problem and leave the problem wholly to the
mercy of a sense of legal beauty (legal "logic" this is sometimes called,
although it has nothing to do with real logic).

The judgments passed upon legal rules and cases in our law reviews
bear most clearly the imprint of the aesthete. The rule or holding is
judged, not always but most often, not in terms of the question, "What
are its effects likely to be, in practice, and are these effects good or bad?"
but rather in terms of the quite distinct question, "Does this rule or
holding fit smoothly into some lovely pattern which some law teacher
has found in the past cases, does it perhaps give a pleasing new turn
to this pattern, or does it spoil the pattern?"

The false slant which this craftsman's approach gives to much legal
thinking can be removed only by a more conscious sense of the diverse
human values which impinge upon any legal case. A sense of legal
beauty or finesse becomes a social disease only when it obscures the
human needs of those who are not lawyers. The old rules of common
law pleading, for instance, gave lawyers much joy and were, to that
extent, good, but at the same time they caused all manner of havoc in
the affairs of clients. In this conflict of values, surely the view of the
public, which at last made its way into the words of certain statutes,
was more humane, based upon a wider set of human values, than the
opposed view of most judges and lawyers.

Norms of justice have often been used as a screen to hide from
the eyes of the law the real wants of the masses from whom a court
derives its powers. But in the end, all attempts to define justice except in
terms of the effects of law upon human desires and feelings have ended
in failure, and must end in failure. Modern ethics has made it clear that
no realm o£ values can be set apart from the fullness of life. Justice, like

LOGIC, LAW, AND ETHICS

beauty, or health, can be defined only in terms of the full set of human
values, the things that men approve or enjoy for their own sake. The
standards of justice or beauty or health must alter as social changes
make place for new human values or shift the role of older values. In-
grown law, like ingrown art, like any form of thought or action that shuts
itself from the outside world, becomes at last idle play with forms with-
out meaning.

Modern ethics rejects all formal standards of justice as the end of law,
and subjects all supposed canons of justice to the final standard of the
good life. The good life, conceived as a system of concrete human values
(not all of them achieved, to be sure, in any single human life), has a
clear meaning for the practice and the study of the law: It brings to bear
upon the problems of the law the full wealth of human wisdom in
the realms of the law's effects upon men's desires, joys, and sorrows.
Where such wisdom exists, the gain for the law is clear. Where such
wisdom does not exist, the gain is less clear but may be as weighty.
To know the limits of past knowledge is the needed prelude to useful
research. No doubt the breadth of viewpoint which the concept of the
good life as a standard of law entails will filter only slowly into our
day-to-day judgments upon legal case and doctrine; but in the end it must
deeply transform both the study and the practice of the law.

Transcendental Nonsense and the
Functional Approach

I. THE HEAVEN OF LEGAL CONCEPTS

Some fifty years ago a great German jurist had a curious dream. He
dreamed that he died and was taken to a special heaven reserved for
the theoreticians of the law. In this heaven one met, face to face, the
many concepts of jurisprudence in their absolute purity, freed from
all entangling alliances with human life. Here were the disembodied
spirits of good faith and bad faith, property, possession, laches, and
rights in rem. Here were all the logical instruments needed to manipulate
and transform these legal concepts and thus to create and to solve the
most beautiful of legal problems. Here one found a dialectic-hydraulic-
interpretation press, which could press an indefinite number of meanings
out of any text or statute, an apparatus for constructing fictions, and a
hair-splitting machine that could divide a single hair into 999,999 equal
parts and, when operated by the most expert jurists, could split each
of these parts again into 999,999 equal parts. The boundless opportuni-
ties of this heaven of legal concepts were open to all properly qualified
jurists, provided only they drank the Lethean draught which induced
forgetfulness of terrestrial human affairs. But for the most accomplished
jurists the Lethean draught was entirely superfluous. They had nothing
to forget.1

Von Jhering's dream has been retold, in recent years, in the chapels
of sociological, functional, institutional, scientific, experimental, realistic,
and neo-realistic jurisprudence. The question is raised, "How much of
contemporary legal thought moves in the pure ether of Von Jhering's

i. Von Jhering, 'Im Juristischen Begriffshiramel," in Scherz und Ernst in der Juris-
prudent (nth ed., 1912), p. 245.

Published in Columbia Law Review, 1935. For a fuller discussion of the functional
method in legal criticism, see below, "The Problems of a Functional Jurisprudence/' p.

77*

LOGIC, LAW, AND ETHICS

heaven of legal concepts?*' One turns to our leading legal textbooks and
to the opinions of our courts for answer. May the Shade of Von Jhering
be our guide.

/. Where Is a Corporation?

Let us begin our survey by observing an exceptionally able court as it
deals with a typical problem in legal procedure. In the case of Tauza v.
Susquehanna Coal Company,2 a corporation which had been chartered
by the State of Pennsylvania was sued in New York. Summons and com-
plaint were served upon an officer of the corporation in New York in
the manner prescribed by New York law. The corporation raised the
objection that it could not be sued in New York. The New York Court
of Appeals disagreed with this contention and held that the corporation
could be sued in that State. What is of interest for our purposes is not
the particular decision of the court but the mode of reasoning by which
this decision was reached.

The problem which the Court of Appeals faced was a thoroughly
practical one. If a competent legislature had considered the problem
of when a corporation incorporated in another State should be subject
to suit, it would probably have made some factual inquiry into the
practice of modern corporations in choosing their sovereigns 8 and into
the actual significance of the relationship between a corporation and
the state of its incorporation. It might have considered the difficulties
that injured plaintiffs may encounter if they have to bring suit against
corporate defendants in the state of incorporation. It might have
balanced, against such difficulties, the possible hardship to corporations
of having to defend actions in many states, considering the legal facili-
ties available to corporate defendants. On the basis of facts revealed
by such an inquiry, and on the basis of certain political or ethical value
judgments as to the propriety of putting financial burdens upon cor-
porations, a competent legislature would have attempted to formulate
some rule as to when a foreign corporation should be subject to suit.

The Court of Appeals reached its decision without avowedly consider-
ing any o! these matters. It does not appear that scientific evidence
on any of these issues was offered to the court. Instead of addressing
itself to such economic, sociological, political, or ethical questions as a

t. aao N.Y, 859, 115 N,E. 915 (*9I7)«

$, Sec Btrle, ''Investors and tfae Revised Delaware Corporation Act"
Columbia Law *«*. $631 Rlpley, Main $W«* and Wdl Strut (1917),

TRANSCENDENTAL NONSENSE

competent legislature might have faced, the court addressed itself to
the question, "Where is a corporation?" Was this corporation really in
Pennsylvania or in New York, or could it be in two places at once?

Clearly the question of where a corporation is, when it incorporates in
one state and has agents transacting corporate business in another state,
is not a question that can be answered by empirical observation. Nor is
it a question that demands for its solution any analysis of political con-
siderations or social ideals. It is, in fact, a question identical in meta-
physical status with the question which scholastic theologians are sup-
posed to have argued at great length, "How many angels can stand
on the point of a needle?1' Now it is extremely doubtful whether any
of the scholastics ever actually discussed this question.* Yet the question
has become, for us, a symbol of an age in which thought without roots
in reality was an object of high esteem.

Will future historians deal more charitably with such legal questions as
"Where is a corporation?" Nobody has ever seen a corporation. What
right have we to believe in corporations if we don't believe in angels?
To be sure, some of us have seen corporate funds, corporate transactions,
etc. (just as some of us have seen angelic deeds, angelic countenances,
etc.). But this does not give us the right to hypostatize, to "thingify,"
the corporation, and to assume that it travels about from State to State
as mortal men travel Surely we are qualifying as inmates of Von
Jhering's heaven of legal concepts when we approach a legal problem in
these essentially supernatural terms.

Yet it is exactly in these terms of transcendental nonsense that the
Court of Appeals approached the question of whether the Susquehanna
Coal Company could be sued in New York State, "The essential thing/'
said Judge Cardozo, writing for a unanimous court, "is that the corpora-
tion shall have come into the State/' 5 Why this journey is essential, or
how it is possible, we are not informed. The opinion notes that the
corporation has an office in the State, with eight salesmen and eleven
desks, and concludes that the corporation is really "in" New York State.
From this inference it easily follows that since a person who is in New
York can be sued here, and since a corporation is a person, the Susque-
hanna Coal Company is subject to suit in a New York court.

The same manner of reasoning can be used by the same court to show
that the Dodge Bros. Motor Corporation "cannot" be sued in New York

4, Several students of scholastic philosophy inform me that they have never found
any evidence of such discussion more reliable than the hearsay testimony o£ Rabelais.
§, See sao N*Y. at *68, 115 NJE, at 918.

LOGIC, LAW, AND ETHICS

because the corporation (as distinguished from its corps of New York
employees and dealers) is not "in" New York.6

Strange as this manner of argument will seem to laymen, lawyers
trained by long practice in believing what is impossible,7 will accept this
reasoning as relevant, material, and competent. Indeed, even the great
protagonist of sociological jurisprudence, Mr. Justice Brandeis, has in-
voked this supernatural approach to the problem of actions against
foreign corporations, without betraying any doubt as to the factual
reference of the question, "Where is a corporation?" Thus, in the leading
case of Bank of America v. Whitney Central National Bank,8 the United
States Supreme Court faced the question of whether a banking corpora-
tion incorporated in Louisiana could be sued in New York, where it
carried on numerous financial transactions and where its president had
been served, but where it did not own any desks. The Supreme Court
held that although the defendant "had what would popularly be called
a large New York business," the action could not be maintained, and
offered, per Brandeis, J., the following justification of this curious
conclusion: 9

The jurisdiction taken of foreign corporations, in the absence of
statutory requirement or express consent, does not rest upon a
fiction of constructive pmence, like qui facit per alium fadt per se.
It flows from the fact that the corporation itself docs business in the
State or district in such a manner and to such an extent that its
actual presence there is established. That the defendant was not in
New York, and, hence, was not found within the district, is clear.

Of course, it would be captious to criticize courts for delivering their
opinions in the language of transcendental nonsense. Logicians some-
times talk as if the only function of language were to convey ideas.
But anthropologists know better and assure us that "language is pri-

es. Holier v, Dodg* Bras. Moiar Corp., 5*35 N.Y. st6» 135 N,E. a68
7. "I can't believe th&tr said Alice,
"Can't you?" the Queen said, in a pitying tone. "Try again: draw a long breath, and
shut your eye*."
Alice laughed. "There's no use trying,1' the *a!d; "one can't believe imj»o««ible

thing!."

"I dare say you haven't had much practice,'* said the Queen. "When i was your
age I always did it for hall an hour a day. Why, sometimes I've believed as many at
six impossible thing* before breakfast." (Lewii Carroll, Through the Looking Glow,

8, «6i U.S. 17
£, !d.f at 173,

TRANSCENDENTAL NONSENSE

marily a pre-rational function." 10 Certain words and phrases are useful
for the purpose of releasing pent-up emotions, or putting babies to sleep,
or inducing certain emotions and attitudes in a political or a judicial
audience. The law is not a science but a practical activity, and myths may
impress the imagination and memory where more exact discourse would
leave minds cold.

Valuable as is the language of transcendental nonsense for many prac-
tical legal purposes, it is entirely useless when we come to study, de-
scribe, predict, and criticize legal phenomena. And although judges and
lawyers need not be legal scientists, it is of some practical importance
that they should recognize that the traditional language of argument
and opinion neither explains nor justifies court decisions. When the vivid
fictions and metaphors of traditional jurisprudence are thought of as
reasons for decisions, rather than poetical or mnemonic devices for
formulating decisions reached on other grounds, then the author, as
well as the reader, of the opinion or argument, is apt to forget the social
forces which mold the law and the social ideals by which the law is to
be judged. Thus it is that the most intelligent judges in America can
deal with a concrete practical problem of procedural law and corporate
responsibility without any appreciation of the economic, social, and
ethical issues which it involves.

2. When Is a Corporation?

The field of corporation law offers many illuminating examples of the
traditional supernatural approach to practical legal problems. In the
famous Coronado case,11 the question was presented to the United
States Supreme Court, whether employers whose business had been in-
jured in the course of a strike could recover a judgment against a
labor union which had "encouraged" the strike, or whether suit could
be brought only against particular individuals charged with committing
or inducing the injury. So far as appears from the printed record, counsel
for the union defendants did not attempt to show that labor unions
would be seriously handicapped by the imposition of financial responsi-
bility for damage done in strikes, that it would be impossible for labor

10. Sapir, Language (1921), p. *4-

u. United Mine Workers of America v, Coronado Coal Co., 259 u-s- 344 (1922)-
The British prototype of this case, Taff-Vale Ry. Co. v. Amalg, Soc. of Railway Servants,
[1901] A.C. 426, reached a similar decision, professedly upon similar transcendental
grounds, but this was soon upset by special legislation. See Webb, History of Trade
Unionism (Rev. ed,, igao), p. 600 ff.

LOGIC, LAW, AND ETHICS

unions to control agents provocateurs, and that labor unions served a
very important function in modern industrial society which would be
seriously endangered by the type of liability in question. Instead of
offering any such argument to support the claim of the labor union to
legal immunity for the torts of its members, counsel for the union
advanced the metaphysical argument that a labor union, being an
unincorporated association, is not a person and, therefore, cannot be
subject to tort liability. This is a very ancient and respectable argument
in procedural law. Pope Innocent IV used it in the middle of the
thirteenth century to prove that the treasuries of religious bodies could
not be subject to tort liability.12 Unfortunately, the argument that a
labor union is not a person is one of those arguments that remain true
only so long as they are believed.13 When the court rejected the argu-
ment and held the union liable, the union became a person — to the
extent of being suable as a legal entity — and the argument ceased to be
true.

The Supreme Court argued, "A labor union can be sued because it
is, in essential aspects, a person, a quasi-corporation/' The realist will
say, "A labor union is a person or quasi-corporation because it can be
sued; to call something a person in law is merely to state, in metaphorical
language, that it can be sued."

There is a significant difference between these two ways of describing
the situation. If we say that a court acts in a certain way "because a
labor union is a person/' we appear to justify the court's action, and to
justify that action, moreover, in transcendental terms, by asserting some-
thing that sounds like a proposition but which cannot be confirmed or
refuted by positive evidence or by ethical argument. If, on the other
hand, we say that a labor union is a person "because the courts allow it
to be sued/' we rccogni/c that the action of the courts has not been
justified at all, and that the question of whether the action of the courts
is justifiable calls for an answer in non-legal terms. To justify or criticize
legal rules in purely legal terms is always to argue in a vicious circle.1*

*a» Cf. I>ewey» "Corporate Personality" in Philosophy and Giviti*&tion (1931)* p. i$4i
and »ee Gierke, &&s Deut&ch* Gen&ssen&chaftwht* j, 879-85; cf. Holdsworth, History
of English Law ($d cd.» 1923} $, 470-74,

13. Compare the case of Wild Modesty, a flower found on certain islands of the South
Scfti, which is really white but turns red when any one looks it it (reported in Trap»
rock 'a The Cruise of the K&W& [*9»n)» p» *o)»

14, Cf, Koguln, La Regie du Droll (1889): "Nothing Is more fallacious than to believe
that one may give an account of the law by means of the law itidf."

TRANSCENDENTAL NONSENSE

3. What's in a Trade Name?

The divorce of legal reasoning from questions of social fact and ethical
value is not a product of crusty legal fictions inherited from darker ages.
Even in the most modern realms of legal development one finds the
thought of courts and of legal scholars trapezing around in cycles and
epicycles without coming to rest on the floor of verifiable fact. Modern
developments in the law of unfair competition offer many examples
of such circular reasoning.

There was once a theory that the law of trade marks and trade-
names was an attempt to protect the consumer against the "passing off"
of inferior goods under misleading labels.15 Increasingly the courts have
departed from any such theory and have come to view this branch
of law as a protection of property rights in divers economically valuable
sales devices.16 In practice, injunctive relief is being extended today to
realms where no actual clanger of confusion to the consumer is present,
and this extension has been vigorously supported and encouraged by
leading writers in the field.17 Conceivably this extension might be
justified by a demonstration that privately controlled sales devices serve
as a psychological base for the power of business monopolies, and that
such monopolies are socially valuable in modern civilization. But no
such line of argument has ever been put forward by courts or scholars
advocating increased legal protection of trade names and similar devices.
For if they advanced any such argument, it might seem that they were
taking sides upon controversial issues of politics and economics. Courts
and scholars, therefore, have taken refuge in a vicious circle to which
no obviously extra-legal facts can gain admittance. The current legal
argument runs: One who by the ingenuity of his advertising or the
quality of his product has induced consumer responsiveness to a par-
ticular name, symbol, form of packaging, etc., has thereby created a thing
of value; a thing of value is property; the creator of property is entitled
to protection against third parties who seek to deprive him of his prop-
erty,18 This argument may be embellished, in particular cases, with

15. Sec Niras, Unfair Competition and Trade-Marks ($d ed., 1929) §8, and cases cited.

16. See American Washboard Co, v. Saginaw Mfg. Co., 103 Fed. 281, 285 (C.C.A.

6th, 1900).

17. Nims, op. cit. supra note 15, §ga; Handler and Pickett, "Trade-Marks and
Trade Name*— An Analysis and Synthesis" (1930) go Columbia Law Rev, 168, 759;
Schechter, "The Rational Basis of Trade-Mark Protection" (1927) 40 Harv. L, Rev. 813.

18. Cf. American Agricultural Chemical Co, v, Moore, 17 F,(ad) 196 (M.D. Ala. 1927)
in which an interesting implication of the current theory is carried to its logical con-

LOGIC, LAW, AND ETHICS

animadversions upon the selfish motives of the infringing defendant,
a summary of the plaintiff's evidence (naturally uncontradicted) as to
the amount of money he has spent in advertising, and insinuations
(seldom factually supported) as to the inferiority of the infringing
defendant's product.

The vicious circle inherent in this reasoning is plain. It purports to
base legal protection upon economic value, when, as a matter of actual
fact, the economic value of a sales device depends upon the extent to
which it will be legally protected. If commercial exploitation of the word
"Palmolive" is not restricted to a single firm, the word will be of no
more economic value to any particular firm than a convenient size, shape,
mode of packing, or manner of advertising common in the trade. Not
being of economic value to any particular firm, the word would be
regarded by courts as "not property/' and no injunction would be issued.
In other words, the fact that courts did not protect the word would
make the word valueless, and the fact that it was valueless would then
be regarded as a reason for not protecting it. Ridiculous as this vicious
circle seems, it is logically as conclusive or inconclusive as the opposite
vicious circle, which accepts the fact that courts do protect private
exploitation of a given word as a reason why private exploitation of
that word should be protected.

The circularity of legal reasoning in the whole field of unfair com-
petition is veiled by the "thingification" of property. Legal language
portrays courts as examining commercial words and finding, somewhere
inhering in them, property rights, It is by virtue of the property right
which the plaintiff has acquired in the word that he is entitled to
an injunction or an award of damages. According to the recognised
authorities on the law of unfair competition, courts arc not creating
property, but arc merely recognizing u pre-existem Something.

The theory that Judicial decisions in the field of unfair competition
law are merely recognitions of a supernatural Something that is im-
manent in certain trade names and symbols is, o£ course, one of the
numerous progeny of the theory that judges have nothing to do with
making the law, but merely recognize pre-existent truths not made by
mortal men.** The effect of this theory, in the law of unfair competition

elusion, A fertilize* company is granted an Injunction against state officials asking to
prevent the ««e of a misleading trade name. The argument is: The plaintiff expected
to do a large business under this trade Rime; sutch expectation! are property* and mutt
be protected agnlnst governmental Interference*

19. See M. R« Cohen, "The Frocen of Judicial Legislation," in Law $nd ihz Social
Order (195$)* p. ut« »l«o printed in (19*4) 48 Am, L. Jtw. 161.

TRANSCENDENTAL NONSENSE

as elsewhere, is to dull lay understanding and criticism of what courts
do in fact.

What courts are actually doing, of course, in unfair competition cases,
is to create and distribute a new source of economic wealth or power.
Language is socially useful apart from law, as air is socially useful, but
neither language nor air is a source of economic wealth unless some
people are prevented from using these resources in ways that are per-
mitted to other people. That is to say, property is a function of in-
equality.20 If courts, for instance, should prevent a man from breathing
any air which had been breathed by another (within, say, a reasonable
statute of limitations), those individuals who breathed most vigorously
and were quickest and wisest in selecting desirable locations in which to
breathe (or made the most advantageous contracts with such individuals)
would, by virtue of their property right in certain volumes of air, come
to exercise and enjoy a peculiar economic advantage, which might,
through various modes of economic exchange, be turned into other
forms of economic advantage, e.g. the ownership of newspapers or
fine clothing. So, if courts prevent a man from exploiting certain forms
of language which another has already begun to exploit, the second
user will be at the economic disadvantage of having to pay the first user
for the privilege of using similar language or else of having to use less
appealing language (generally) in presenting his commodities to the
public.

Courts, then, in establishing inequality in the commercial exploitation
of language are creating economic wealth and property, creating prop-
erty not, of course, ex nihilo, but out of the materials of social fact,
commercial custom, and popular moral faiths or prejudices. It does not
follow, except by the fallacy of composition,21 that in creating new
private property courts are benefiting society. Whether they are bene-
fiting society depends upon a series of questions which courts and
scholars dealing with this field of law have not seriously considered.
Is there, for practical purposes, an unlimited supply of equally attractive

20. See M. R. Cohen, "Property and Sovereignty," in Law and the Social Order (1933),
p. 4*1; R, L, Hale, "Coercion and Distribution in a Supposedly Non-Coercive State"
(1923) 38 Pol $ci. Q. 470; R. L. Hale, "Rate Making and the Revision of the Property
Concept" (1922) *2 Columbia Law Rev. 209.

21. "Composition is the passage from a statement about each or every member of
a collection, taken severally, in one of the premises, to a statement about the collection
as a whole in the conclusion." Eaton, General Logic (1931), p. 340. An instance of the
commission of this fallacy, in the present context, would be the statement that the
court is adding to the wealth of society because it is adding to the wealth of the par-
ticular individuals whose control over the sales device it protects.

LOGIC, LAW, AND ETHICS

words under which any commodity can be sold, so that the second seller
o£ the commodity is at no commercial disadvantage if he is forced to
avoid the word or words chosen by the first seller? If this is not the
case, i.e. if peculiar emotional contexts give one word more sales appeal
than any other word suitable for the same product, should the peculiar
appeal of that word be granted by the state, without payment, to the
first occupier? Is this homestead law for the English language necessary
in order to induce the first occupier to use the most attractive word
in selling his product? If, on the other hand, all words are originally
alike in commercial potentiality, but become differentiated by advertis-
ing and other forms of commercial exploitation, is this type of business
pressure a good thing, and should it be encouraged by offering legal
rewards for the private exploitation of popular linguistic habits and
prejudices? To what extent is differentiation of commodities by trade
names a help to the consumer in buying wisely? To what extent is the
exclusive power to exploit an attractive word, and to alter the quality of
the things to which the word is attached, a means of deceiving con-
sumers into purchasing inferior goods?

Without a frank facing of these and similar questions,22 legal reason-
ing on the subject of trade names is simply economic prejudice mas-
querading in the cloak of legal logic. The prejudice that identifies the
interests of the plaintiff in unfair competition cases with the interests
of business23 and identifies the interests of business with the interests
of society, will not be critically examined by courts and legal scholars
until it is recognized and formulated. It will not be recogni/ed or
formulated so long as the hypostatization of "property rights" conceals
the circularity of legal reasoning.

4. How High Is Fair Value?

Perhaps the most notorious example of circular reasoning in con-
temporary jurisprudence is that involved in judicial determination of the
returns to which public utilities are entitled "under the Constitution/' 34
What courts purport to do in rate cases Is to ascertain the "value" of
the utility's property and then to fix a price to the consumer which as-

«i. An example of realistic analysis of consequences in this field it Legl*.* The Vestal
Bill for the Copyright Regittratlof* of De*ipa (1951) 3* Columbia law Rw, 477.

«S. See Schecbler, op, cli» *upra note 17, at 851,

84, The circularity of judicial reasoning In thk field it discuifed in R, L. Hile,
"Vilue and Vested Rights" (1917) t? Columbia Law Are. 513; 0, R, RIchberg, "Value
by Judicial Fiat" (*§*7) 40 Now. L. R&v, §67; J. C. BonMfeht. "The Problem of
Judicial Valuation** (19^7) *7 CaftimWa XAW JZw, 493.

TRANSCENDENTAL NONSENSE

sures the utility a fair rate of return upon that value. This would be an
understandable procedure if the courts meant by "value" either actual
cost or replacement cost. For almost forty years, however, since the
famous case of Smyth v. Ames?$ the courts have insisted that it may
be "unconstitutional*' to allow a utility merely a fair return on the actual
cost or replacement cost of its property; it must be allowed a fair return
on the "actual value" of the property.

What is the actual value of a utility's property? Obviously it is the
capitalization at current market rates of the allowed and expected profit.
In a six per cent money market, an enterprise which is allowed to take
six million dollars profit per annum will be valued at one hundred
million dollars, one that is allowed three millions per annum, at fifty
million dollars. The actual value of a utility's property, then, is a func-
tion of the court's decision, and the court's decision cannot be based in
fact upon the actual value of the property. That value is created by the
court; prior to the court's decision and aside from information or belief
as to what the court will decide, it is not an economic fact. Nor is it
avowedly an ethical fact based upon a determination of the amount
which a given utility ought, in the light of social facts and social policies,
to be allowed to charge its patrons. Judicial reasoning in this field is
thus entirely mythical, and the actual motivation of courts in reaching
given decisions is effectively concealed, from all true believers in the
orthodox legal theology.

5. When Is Legal Process "Due"?

Legal reasoning carries a peculiar freight of human hopes and human
suffering in that realm where the phrase "due process of law" serves
as a text for judicial review of social legislation. Here, at least, one
might hope that a "decent respect to the opinions of mankind" would
lead courts to formulate with some clarity their own conception of
what it is that they are doing. Yet in no realm does logomachy offer
more stubborn resistance to realistic analysis.

What is due process of law?

One might have supposed from the language of certain cases 26 that
"due process of law" meant such law as was familiar to the Founding
Fathers of the Constitution. Thus conceived, the phrase would denote a
fairly definite concept, and the function of the courts in applying that

25, 169 U.S. 466 (1898).

26. See Murray v. Hoboken Land and Improvement Co., 18 How. 272, 280 (U.S. 1855);
Robertson v. Baldwin* 165 U.S. 275 (1897), and cases cited.

LOGIC, LAW, AND ETHICS

concept to legislation would be that of objective scholarly inquiry into
legal history, It is clear, however, that the modern judicial use of the
due process clauses is not based upon any such historical inquiry. Regu-
lation of wages and prices, against which these clauses have been directed
with particular severity, finds ample historical precedent in early colonial
and English legislation.27

Recent judicial utterances suggest a second conception of due process:
Legislation falls within the "due process" clauses when it is such as
rational men may approve. Taken seriously, this conception makes of
our courts lunacy commissions sitting in judgment upon the mental
capacity of legislators and, occasionally, of judicial brethren. Some such
conception served as the major premise for the famous brief of Mr.
Brandeis in the case of Muller v. Oregon,2* which marshaled the favor-
able opinions entertained by individuals of undisputed sanity towards
legislation restricting the hours of industrial labor for women. But subse-
quent applications of this technique have found less favor in the eyes
of the courts, and when Mr. Frankfurter presented to the Supreme
Court a similar anthology of opinions in favor of minimum wage legis-
lation for women, the reply of the Supreme Court was that one might
also make an impressive compilation of unfavorable opinions.29 The
fact, then, that reasonable men approve of specific legislation does not
prevent it from being a violation of "due process of law."

The phrase "due process of law," then, denotes neither an historical
nor a psychiatric fact. Does it, perhaps, denote a moral ideal? Whether
legislation is due or undue or overdue may seem to laymen to be a
question of social ethics or morality. But such a conception has been
vigorously repudiated by the courts. Thus Mr. Frankfurter's analysis
of the social evils which minimum wage legislation might eliminate was
characterized by the United States Supreme Court as "'interesting but
only mildly persuasive," and the Court went on to say: 'These are all
proper enough for the consideration of the lawmaking bodies, since
their tendency is to establish the desirability or undesirability o£ the
legislation; but they reflect no legitimate light upon the question of its
validity, and that is what we are called upon to decide." so

27. See, for instance, the New York act of April 5, 1778, "An act to regulate the
wages of mechanicks and labourers, the prices of goods and commodities, and the
charges of inn holders within this State, and for other purposes therein mentioned/'
and other statutes cited in Handler, "Constitutionality of Investigations by the Federal
Trade Commission" (1928) »8 Columbia Law Rev, 708, 712 n. 141 see also Boudin,
Government by Judiciary (1932), a> 401, 447.

nS. 208 U.S. 412 (1908).

29. Adkins v. Children's Hospital, s6i US. 525, 559 (lo/ss)*

30. Ibid.

TRANSCENDENTAL NONSENSE

"Due process of law," then, can no more be defined in social ethical
terms than in terms of legal history or abnormal psychology.

In practice, the Supreme Court professes to consider, in a "due process"
case, primarily its own former adjudications on the subject, apparently
believing, with the Bellman,31 that what it says three times must be
true. But this process of self-fertilization will scarcely account for actual
decisions. And one may suspect that a court would not consistently hide
behind a barrage of transcendental nonsense if the grounds of its de-
cisions were such as could be presented without shame to the public.

6. The Nature of Legal Nonsense

It would be tedious to prolong our survey; in every field of law we
should find the same habit of ignoring practical questions of value or
of positive fact and taking refuge in "legal problems" which can always
be answered by manipulating legal concepts in certain approved ways.
In every field of law we should find peculiar concepts which are not
defined either in terms of empirical fact or in terms of ethics but which
are used to answer empirical and ethical questions alike, and thus bar
the way to intelligent investigation of social fact and social policy.
Corporate entity, property rights, fair value, and due process are such
concepts. So too are title, contract, conspiracy, malice, proximate cause,
and all the rest of the magic "solving words" of traditional jurispru-
dence. Legal arguments couched in these terms are necessarily circular,
since these terms are themselves creations of law, and such arguments
add precisely as much to our knowledge as Moliere's physician's dis-
covery that opium puts men to sleep because it contains a dormitive
principle.

Now the proposition that opium puts men to sleep because it contains
a dormitive principle is scientifically useful if "dormitive principle" is
defined physically or chemically. Otherwise it serves only to obstruct the
path of understanding with the pretense of knowledge. So, too, the
proposition that a law is unconstitutional because it deprives persons of
property without due process of law would be scientifically useful if

31. "Just the place for a Snarkl" the Bellman cried,

As he landed his crew with care;
Supporting each man on the top of the tide

By a finger entwined in his hair.
"Just the place for a Snark! I have said it twice:

That alone should encourage the crew.
"Just the place for a Snarkl I have said it thrice:
What I tell you three times is true."

Lewis Carroll, The Hunting of the Snark, Fit the First

LOGIC, LAW, AND ETHICS

"property" and "due process" were defined in non-legal terms; other-
wise such a statement simply obstructs study of the relevant facts.

If the foregoing instances of legal reasoning are typical, we may sum-
marize the basic assumptions of traditional legal theory in the following
terms:

Legal concepts (for example, corporations or property rights) are super-
natural entities which do not have a verifiable existence except to the
eyes of faith. Rules of law., which refer to these legal concepts, are not
descriptions of empirical social facts (such as the customs of men or
the customs of judges) nor yet statements of moral ideals, but are rather
theorems in an independent system. It follows that a legal argument
can never be refuted by a moral principle nor yet by any empirical fact.
Jurisprudence, then, as an autonomous system of legal concepts, rules,
and arguments, must be independent both of ethics and of such positive
sciences as economics or psychology. In effect, it is a special branch
of the science of transcendental nonsense.

II. THE FUNCTIONAL METHOD

That something is radically wrong with our traditional legal thought-
ways has long been recognized. Holmes, Gray, Pound, Brooks Adams,
M. R. Cohen, T. R. Powell, Cook, Oliphant, Moore, Radin, Llewellyn,
Yntema, Frank, and other leaders of modern legal thought in America,
are in fundamental agreement in their disrespect for "mechanical juris-
prudence," for legal magic and word-jugglery.32 But mutual agreement
is less apparent when we come to the question of what to do: How are
we going to get out of this tangle? How are we going to substitute a

32. See Holmes, "The Path of the Law" (1897) 10 Harv. L, Rev. 457, Collected Legal
Papers (1930), p. 167; Gray, Nature and Sources of the Law (1909), c. 4-5; Pound, "Law
in Books and Law in Action" (1910) 44 Am. L. Rev. is; Pound, "Mechanical Juris-
prudence" (1908) 8 Columbia Law Rev. 605; Brooks Adams, "Law under Inequality:
Monopoly/' in Centralization and the Law (1906) Lecture *; M, R. Cohen, "The Process
of Judicial Legislation'* (1914) 48 Am. L. Rev. 161, Law and the Social Order (1933), p.
MS; T. R, Powell, "The Judiciality of Minimum Wage Legislation" (1924) 37 Han;, L.
Rev. 545; Cook, "Logical and Legal Bases of the Conflict of Laws" (1924) 33 Yale LJ,
457; Oliphant, "A Return to Stare Decisis*' (1938) 6 Am. L. School Rev. $15; U. Moore,
"Rational Basis of Legal Institutions" (1923) 23 Columbia Law Rev. 609; M. Radin,
"Case Law and Stare Decisis: Concerning Pr&judizienrecht in Amerika" (1933) 33
Columbia Law Rev. 199; Llewellyn, "A Realistic Jurisprudence — The Next Step1"
(1930) 30 Columbia Law Rev. 431; Llewellyn, "Some Realism about Realism: Reipond-
ing to Dean Pound" (1931) 44 Harv. L. Rev. i«ss; Yntema, "The Hornbook Method and
the Conflict of Laws" (1928) 37 Yale LJ. 468; Frank, Law and the Modern Mind
093°)-

TRANSCENDENTAL NONSENSE

realistic, rational, scientific account of legal happenings for the classical
theological jurisprudence of concepts?

Attempts to answer this question have made persistent use of the
phrase "functional approach." Unfortunately, this phrase has often been
used with as little meaning as any of the magical legal concepts against
which it is directed. Many who use the term "functional" intend no
more than the vague connotation which the word "practical" conveys
to the "practical" man. Again, the term "functional approach" is some-
times used to designate a modern form of animism, according to which
every social institution or biological organ has a "purpose" in life, and
is to be judged good or bad as it achieves or fails to achieve this
"purpose." I shall not attempt to be faithful to these vague usages in
using the term "functional" I shall use the term rather to designate
certain principles or tendencies which appear most clearly in modern
physical and mathematical science and in modern philosophy. For it is
well to note that the problem of eliminating supernatural terms and
meaningless questions and redefining concepts and problems in terms
of verifiable realities is not a problem peculiar to law. It is a problem
which has been faced in the last two or three centuries, and more espe-
cially in the last four or five decades, by philosophy, mathematics, and
physics, as well as by psychology, economics, anthropology, and doubt-
less other sciences as well. Functionalism, opera tionalism, pragmatism,
logical positivism, all these and many other terms have been used in
diverse fields, with differing overtones of meaning and emphasis, to
designate a certain common approach to this general task of redefining
traditional concepts and traditional problems.

It may perhaps clarify the significance of the functional approach
in law to trace some of the basic contributions which the functional
method has made in modern science and philosophy.

i. The Eradication of Meaningless Concepts

On its negative side (naturally of special prominence in a protestant
movement), functionalism represents an assault upon all dogmas and
devices that cannot be translated into terms of actual experience.

In physics, the functional or operational method is an assault upon
such supernatural concepts as absolute space and absolute time; in
mathematics, upon supernatural concepts of real and imaginary, rational
and irrational, positive and negative numbers. In psychology, William
James inaugurates the functional method (of which behaviorism is an
extreme form) by asking the naive question: "Does consciousness ex-

LOGIC, LAW, AND ETHICS

ist?"33 Modern "functional grammar" is an assault upon grammatical
theories and distinctions which, as applied to the English language,
simply have no verifiable significance — such empty concepts, for instance,
as that of noun syntax, with its unverifiable distinction between a nomi-
native, an objective, and a possessive case.34 And passing to the field
of art, we find that functional architecture is likewise a repudiation of
outworn symbols and functionless forms that have no meaning, — hollow
marble pillars that do not support, fake buttresses, and false fronts.35
So, too, in law. Our legal system is filled with supernatural concepts,
that is to say, concepts which cannot be defined in terms of experience,
and from which all sorts of empirical decisions are supposed to flow.
Against these unverifiable concepts modern jurisprudence presents an
ultimatum. Any word that cannot pay up in the currency of fact, upon
demand, is to be declared bankrupt, and we are to have no further deal-
ings with it, Llewellyn has filed an involuntary petition in bankruptcy
against the concept Title,36 Oliphant against the concept Contract,37
Haines, Brown, T. R. Powell, Finkelstein, and Cushman against Due
Process, Police Power, and similar word-charms of constitutional law,88
Hale, Richberg, Bonbright, and others against the concept of Fair Value
in rate regulation,89 Cook and Yntema against the concept of Vested
Rights in the conflict of laws.40 Each of these men has tried to expose
the confusions of current legal thinking engendered by these concepts

33. Essays in Radical Empiricism (1912), p. i. Answering this question, James
asserts, "There is ... no aboriginal stuff or quality of being, contrasted with that of
which material objects are made, out of which our thoughts of them are made; but
there is a function in experience which thoughts perform . . ." (pp, 3-4),

34. See H. N. Rivlin, Functional Grammar (1930); and cf. L. Bloomfield, Language
(1933), p. 266 et passim,

35. See F. L. Wright, Modern Architecture (1931).

36. Llewellyn, Cases and Materials on the Law of Sales (1930),

37. Oliphant, "Mutuality of Obligation in Bilateral Contracts at Law" (1935) *5
Columbia Law Rev. 705; (1928) 28 Columbia Law Rev, 997.

38. C. G. Haines, ''General Observations on the Effects of Personal, Political and
Economic Influences in the Decisions of Judges" (1922) 17 III L. Rev. 96; R, A. Brown,
"Police Power — Legislation for Health and Personal Safety1' (1929) 4* Harv. £, Rev.
866; T. R. Powell, "The Judicially of Minimum Wage Legislation" (1924) 37 Haw. L.
Rev. 545; M. Finkelstein, "Judicial Self-Limitation" (1924) 37 Hart;. L. Rev, 338;
R. E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amend-
ment" (1922) so Mich, L, Rev. 737,

39. See note 24, supra.

40. Cook, "Logical and Legal Bases of the Conflict of Laws" (1984) S3 ^k &J*
457; Ynterna, "The Hornbook Method and the Conflict of Laws" (1988) 37 Yale LJ,
468,

TRANSCENDENTAL NONSENSE

and to reformulate the problems in his field in terms which show the
concrete relevance of legal decisions to social facts.

2. The Abatement of Meaningless Questions

It is a consequence of the functional attack upon unverifiable concepts
that many of the traditional problems of science, law, and philosophy
are revealed as pseudo-problems devoid of meaning. As the protagonist
of logical positivism, Wittgenstein, says of the traditional problems of
philosophy:

Most propositions and questions, that have been written about
philosophical matters, are not false, but senseless. We cannot, there-
fore, answer questions of this kind at all, but only state their sense-
lessness. Most questions and propositions of the philosophers result
from the fact that we do not understand the logic of our language.
(They are of the same kind as the question whether the Good is
more or less identical than the Beautiful.) And so it is not to be
wondered at that the deepest problems are really no problems.41

The same thing may be said of the problems of traditional juris-
prudence. As commonly formulated, such "problems" as, "What is the
holding or ratio deddendi of a case?" 42 or "Which came first — the law
or the state?" 43 or "What is the essential distinction between a crime
and a tort?" 44 or "Where is a corporation?" are in fact meaningless,
and can serve only as invitations to equally meaningless displays of
conceptual acrobatics.

Fundamentally there are only two significant questions in the field
of law. One is, "How do courts actually decide cases of a given kind?"

41. Wittgenstein, Tractatus Logico-Philosophicus (1922) prop. 4,003, And cf. James,
Pragmatism (1908): "The pragmatic method is primarily a method of settling meta-
physical disputes that otherwise might be interminable. . . . The pragmatic method
in such cases is to try to interpret each notion by tracing its respective practical
consequences. ... If no practical differences whatever can be traced, then the alterna-
tives mean practically the same thing, and all dispute is idle. ... It is astonishing to
see how many philosophical disputes collapse into insignificance the moment you sub-
ject them to this simple test of tracing a practical consequence" (pp. 45-49)'

42. See Goodhart, "Determining the Ratio Decidendi of a Case" (1930) 40 Yale L.J.
161; and cf. Llewellyn, Bramble Bush (1930), p. 47.

43. Fortunately there is very little literature in the English language on this problem.
German jurists, however, are inordinately fond of it

44. See C. K. Allen, Legal Duties and Other Essays in Jurisprudence (1931), p. *3&
And cf. W. W. Cook, Book Review (1932) 43 Yale LJ. 299.

LOGIC, LAW, AND ETHICS

The other is, <4How ought they to decide cases of a given kind?*' Un-
less a legal "problem" can be subsumed under one of these forms, it
is not a meaningful question and any answer to it must be nonsense.45

3. The Redefinition of Concepts

Although the negative aspect of the functional method is apt to assume
peculiar prominence in polemic controversy, the value of the method
depends, in the last analysis, upon its positive contributions to the ad-
vancement of knowledge. Judged from this standpoint, I think it is fair
to say that the functional method has justified itself in every scientific
field to which it has been actually applied, and that functional redefini-
tion of scientific concepts has been the keynote of most significant
theoretical advances in the sciences during the last half century.

The tremendous advance made in our understanding of the founda-
tions of pure mathematics, achieved through the work of such men as
Frege, Peano, Whitehead, and Russell,46 offers an illuminating example
of the functional method in action.

Mathematics, fifty years ago, contained as many unanalyzed "fictions,"
supernatural concepts, unreal questions, and unjustified operations as
classical jurisprudence. High school students are still taught to subtract
the integer seven from the integer two, which is logically impossible.
An integer is the number of a class, and obviously a class of seven
members cannot be contained in, or subtracted from, a class of two
members. The student who refuses to believe in such supernatural
subtraction is entirely justified, although he must expect scant mercy
from ignorant teachers and examiners (as must the law student who
refuses to answer senseless questions of law and merely points out their
senselessness). Nevertheless, the mathematical fiction, like the legal fiction
(e.g. the spatial location of a corporation), represents a confused per-
ception of a significant fact, and it is the province of functional analysis
to untangle the confusion and find the fact. It is a fact that if you move
seven units in one direction — in the direction of bankruptcy, say, or in
the direction of lowered temperature — and call that direction "minus"
— and then move two units in the opposite direction — "plus" — you have
in effect moved five units in the first — the "minus*'-— direction. Un-
doubtedly, it is useful to invent or define mathematical terms which will

45. Cf. F. S. Cohen, "What is a Question?" [above, p. 3].

46. See Russell, Principles of Mathematics (1903); Introduction to Mathematical
Philosophy (1919); Russell and Whitehead, Principia Mathetnatica (1910); Frege, !>*>
Grundlagen der Arithmetik (1884).

TRANSCENDENTAL NONSENSE

describe these two motions or operations and the relation between them
(as it is useful to invent legal terms to describe the corporate activities
of human beings). But such mathematical terms, it is important to recog-
nize, are not numbers, as "number" is ordinarily defined (i.e. they are
not integers). What, then, are these novel entities? Classical mathematics
conceived of these entities as integers acting, under a special dispen-
sation, in supernatural ways. Modern mathematics shows that these
entities, known as "sign numbers," are not integers at all, but rather
constructs or functions of integers. The number "—7" is the operation
of moving from any integer to its immediate predecessor in the series of
integers, repeated seven times. The number "+7" is the converse opera-
tion, i.e. the operation of moving from any integer to its immediate
successor, repeated seven times. The number "+7" is therefore some-
thing quite different from the integer "7." It is, however, a logical
function or construct of the integer seven, since the integer seven ap-
pears in the definition of "+7" as an operation repeated "seven" times.

Similarly, modern advances in mathematics have made it clear that
rational and irrational, real and imaginary, numbers are not numbers
at all, in the original sense of the term, but are functions of such
numbers.47 The so-called arithmetization of mathematics, and the defi-
nition of the concepts of mathematics by Whitehead and Russell, as con-
structs of certain simple logical terms, have stripped mathematical terms
of their supernatural significations, illumined and eliminated hidden in-
consistencies, and clarified the relationships of mathematical concepts
not only to each other but to the material world.

A similar use of the functional method has characterized the most
significant advances of modern philosophy. The attack upon tran-
scendental conceptions of God, matter, the Absolute, essence and acci-
dent, substance and attribute, has been vigorously pressed by C. S. Peirce,
James, Dewey, Russell, Whitehead, C. I. Lewis, C. D. Broad, and most
recently by the Viennese School, primarily by Wittgenstein and Carnap.48

47. See Russell, Introduction to Mathematical Philosophy (1919), c. 7.

48. See C. S. Peirce, Chance, Love and Logic (1923); Collected Papers (1951-1934),
especially Vol. 5; James, Pragmatism (1908); Essays in Radical Empiricism (1912);
Dewey, "Appearing and Appearance," in Philosophy and Civilization (1931), p. 51;
Russell, Our Knowledge of the External World as a Field for Scientific Method in
Philosophy (1914); Mysticism and Logic (1918); Whitehead, The Principles of Natural
Knowledge (1919); The Concept of Nature (1920); C. I. Lewis, Mind and the World-
Order (1929); C. D. Broad, Scientific Thought (1923); Wittgenstein, Tractatus Logico-
Philosophicus (1922); Carnap, "Ueberwindung der Metaphysik durch logische Analyse
der Sprache" (1932) t Erkenntnis No. 4; J. E, Boodin, "Functional Realism" (1934) 43
Philosophical Review 147.

LOGIC, LAW, AND ETHICS

These men fall into various schools — pragmatism, pragmaticism (which
is the word Peirce shifted to when he saw what his followers were doing
to the word "pragmatism"), neo-realism, critical realism, functional real-
ism, and logical positivism. It would be unfair to minimize the real
differences between some of these schools, but in one fundamental respect
they assume an identical position. This is currently expressed in the
sentence, "A thing is what it does." More precise is the language of
Peirce: "In order to ascertain the meaning of an intellectual conception
one should consider what practical consequences might conceivably result
by necessity from the truth of that conception; and the sum of these
consequences will constitute the entire meaning of the conception." 49
The methodological implications of this maxim are summed up by
Russell in these words: "The supreme maxim in scientific philosophising
is this: Wherever possible, logical constructions are to be substituted for
inferred entities." 50

In other words, instead of assuming hidden causes or transcendental
principles behind everything we see or do, we are to redefine the con-
cepts of abstract thought as constructs, or functions, or complexes, or
patterns, or arrangements, of the things that we do actually see or do.
All concepts that cannot be defined in terms of the elements of actual
experience are meaningless.

The task of modern philosophy is the salvaging of whatever signifi-
cance attaches to the traditional concepts of metaphysics, through the
redefinition of these concepts as functions of actual experience. What-
ever differences may exist among modern philosophers in the choice
of experiential terms which are to serve as the basic terms of functional
analysis — "events," "sensa," and "atomic facts" are but a few of these
basic terms — few would disagree with the point of view expressed by
William James when he says that in our investigation of any abstract
concept the central question must be: "What is its cash value in terms
of particular experience? and what special differences would come into
the world if it were true or false?" 61

A similar use of the functional method characterizes recent advances
in physics. Instead of conceiving of space as something into which
physical things fit, but which somehow exists, unverifiably, apart from
the things that fill it (as the Common Law is supposed to exist apart from
and prior to actual decisions), and then assuming that there is an ether
that fills space when it is empty, modern physicists conceive space as a

49. C. S. Peirce, Collected Papers, 5, 6.

50. Russell, Mysticism and Logic (1918), p. 155.

51. James, "The Pragmatic Method" (1904) i Jour, of Philosophy 673.

TRANSCENDENTAL NONSENSE

manifold of relations between physical objects or events. The theory of
relativity begins with the recognition that relations between physical
objects or events involve a temporal as well as a spatial aspect. Thus
it becomes convenient for certain purposes to substitute the notion of
space-time for that of space, or even to substitute a notion which in-
cludes mass as well as space and time.

The parallel between the functional method of modern physics and
the program of realistic jurisprudence is so well sketched by a distin-
guished Chinese jurist that I can only offer a quotation without com-
ment: 52

Professor Eddington, in a recent book on "The Nature of the
Physical World," observes: "A thing must be defined according to the
way in which it is in practice recognized and not according to some
ulterior significance that we suppose it to possess/' So Professor
Bridgman, in "The Logic of Modern Physics":

"Hitherto many of the concepts of physics have been defined in
terms of their properties/' But now, "in general, we mean by any
concept nothing more than a set of operations; the concept is
synonymous with the corresponding set of operations. If the con-
cept is physical, as of length, the operations are actual physical
operations, namely, those by which length is measured; or if the
concept is mental, as of mathematical continuity, the operations
are mental operations, namely those by which we determine
whether a given aggregate of magnitudes is continuous/'
Now, this way of dealing with concepts was precisely what Holmes
introduced into the science of law early in the *8o's. Before dis-
cussing the significance and possibilities of the new method, let me
list here some of his definitions of things juridic:
Law: "The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law."

"But for legal purposes a right is only the hypostasis of a
prophecy — the imagination of a substance supporting the fact
that the public force will be brought to bear upon those who do
things said to contravene it — just as we talk of the force of gravi-
tation accounting for the conduct of bodies in space."
Duty: "A legal duty so called is nothing but a prediction that if

52. John C. H. Wu, "Realistic Analysis of Legal Concepts: A Study in the Legal
Method of Mr. Justice Holmes" (1932) 5 China L. Rev. i, 2.

LOGIC, LAW, AND ETHICS

a man does or omits certain things he will be made to suffer in
this or that way by judgment of the court; and so of a legal right."

Contract: "The duty to keep a contract at common law means a
prediction that you must pay damages if you do not keep it and
nothing else. If you commit a tort, you are liable to pay a com-
pensatory sum. If you commit a contract, you are liable to pay a
compensatory sum unless the promised event comes to pass, and
that is all the difference."

It may be conceded at the outset that all these definitions are
capable of being further developed or improved upon: The im-
portant point to note is the complete departure from the way the
old Classical Jurisprudence defined things. Hostile as he was to the
traditional logic, Holmes touched the springs of the neo-realistic
logic in his analysis of legal concepts. He departed entirely from the
subject-predicate form of logic, and employed a logic of relations.
He did not try to show how a legal entity possesses certain inherent
properties. What he was trying everywhere to bring out is: If a
certain group of facts is true of a person, then the person will
receive a certain group of consequences attached by the law to that
group of facts. Instead of treating a legal concept as a substance
which in its nature necessarily contains certain inherent properties,
we have here a logic which regards it as a mere signpost of a real
relation subsisting between an antecedent and a consequent, and, as
one of the New Realists so aptly puts it, all signposts must be kept
up to date, with their inscriptions legible and their pointing true.
In short, by turning the juristic logic from a subject-predicate form
to an antecedent-consequent form, Holmes virtually created an in-
ductive science of law. For both the antecedent and the consequent
are to be proved and ascertained empirically,

In brief, Holmes and, one should add, Hohfeld 58 have offered a logical
basis for the redefinition of every legal concept in empirical terms,
i.e. in terms of judicial decisions. The ghost-world of supernatural legal
entities to whom courts delegate the moral responsibility of deciding
cases vanishes; in its place we see legal concepts as patterns of judicial
behavior, behavior which affects human lives for better or worse and is
therefore subject to moral criticism. Of the functional method in legal
science, one may say, as Russell has said of the method in contemporary
philosophy, "Our procedure here is precisely analogous to that which

53. See Hohfeld, Fundamental Legal Conceptions (1919).

TRANSCENDENTAL NONSENSE

has swept away from the philosophy of mathematics the useless menagerie
of metaphysical monsters with which it used to be infested." 54

4. The Redirection of Research

It is often easier to distinguish a school of thought by asking not,
"What basic theory does it defend?" but rather, "What basic question
does it propound?"

A failure to recognize that the law is a vast field, in which different
students are interested in diverse problems, has the unfortunate effect
of making every school of legal thought an ex officio antagonist of every
other school. Dean Pound's classification of jurists into mutually ex-
clusive "analytical/' "historical," "philosophical," and "sociological"
schools, with sub-species too numerous to mention,55 has given a good
deal of prestige to the idea that a new school of jurisprudence must
offer a revolutionary threat to all existing schools. It would be un-
fortunate to regard "functionalism" in law as a substitute for all other
"isms." Rather, we must regard functionalism, in law as in anthropology,
economics, and other fields, as a call for the study of problems which
have been neglected by other scientific methods of investigation.

In general, when one comes upon a strange fact and seeks to un-
derstand it, there are four inquiries he can pursue.

In the first place, our investigator can classify the fact — either by
putting an arbitrary label upon it or by discerning in the fact to be
explained the significant similarities and differences which relate it to
other facts.

Again, one may seek to discover the genesis of the fact in question,
to trace its historical antecedents.

In the third place, one may inquire into the nature of the fact pre-
sented, endeavoring by logical analysis to resolve it into simpler ele-
ments.

A fourth possible approach seeks to discover the significance of the
fact through a determination of its implications or consequences in a
given mathematical, physical, or social context.

It is this last approach to which the term "functional" has been ap-
plied. Obviously, it is not the only way of gathering useful information,
and obviously, it is largely dependent upon the results of classificatory
or taxonomic investigation, genetic or historical research, and analytical
inquiries. Finally, it must be remarked that the functional method is
not a recent invention, Plato's attempt to define "justice" by assessing

54. Russell, op. cit. supra note 50,

55. See Pound, Outlines of Lectures on Jurisprudence (4th ed., 1928), c. JL.

LOGIC, LAW, AND ETHICS

the activities of a just state,56 and Aristotle's conception of the soul
as the way a living body behaves 57 are illustrious examples of functional
analysis. So, too, Hume's analysis of causation in terms of uniformity
of succession, and Berkeley's analysis of matter in terms of its appear-
ances, are significant attempts to redefine supernatural concepts in
natural terms,58 to wash ideas in cynical acid (borrowing Holmes' sug-
gestive phrase).59

If functional analysis seems novel in the law, this is perhaps traceable
to the general backwardness of legal science, which is the product of
social factors that cannot be exorcised by new slogans.

With these caveats against the notion that the functional approach
is a new intellectual invention which will solve all the problems of law
(or of anthropology, economics, or any other science), we may turn
to the significant question: "What are the new directions which the
functional method will give to our scientific research?"

In attempting to answer this question for the field of law we may
find suggestive precedents in other social sciences.

Applied to the study of religion, for instance, the functional approach
has meant a shift of emphasis away from the attempt to systematize
and compare religious beliefs, away from concern with the genesis and
evolution of religions, and towards a study of the consequences of various
religious beliefs in terms of human motivation and social structure.
Outstanding examples of this focus are Weber's and Tawney's studies
of the influence of Protestantism in the development of modern capital-
ism,60 and James' essays on the psychological significance for the in*
dividual of various religious beliefs.61 The functional approach asks of
every religious dogma or ritual: How does it work? How does it serve
to mold men's lives, to deter from certain avenues of conduct and
expression, to sanction accepted patterns of behavior, to produce or
alleviate certain emotional stresses, to induce social solidarity, to lay

56. Plato, Republic,

57. Aristotle, DC Anima, /, i; 2, i.

58. Cf. James, Pragmatism (1908): "There is absolutely nothing new in the prag-
matic method. Socrates was an adept at it, Aristotle used it methodically. Locke,
Berkeley, and Hume made momentous contributions to truth by its means" (at p. 50).
See, also, James, "The Pragmatic Method" (1904) i Jour, of Philosophy 675,

59. ". . . the vague circumference of the notion of duty shrinks and at the same
time grows more precise when we wash it with cynical acid and expel everything except
the object of our study, the operations of the law." Holmes, "The Path of the Law"
(1897) 10 Harv. L. Rev. 457, 462.

60. Max Weber, The Protestant Ethic and the Spirit of CapitaUsmt tr. by Parson*
(1930); R. H. Tawney, Religion and the Rise of Capitalism (1926).

61. James, The Varieties of Religious Experience (190®).

TRANSCENDENTAL NONSENSE

a basis for culture accumulation by giving life after death to the visions,
thoughts, and achievements of mortal men.62 The significance of a
religious dogma is found not in a system of theological propositions
but in a mode of human conduct. The functional approach demands
objective description of this conduct, in which the empirical significance
of the religious belief is embodied. Just so, the functional approach in
physics captures the significance of a physical concept in the actual
processes and operations of the physicist, rather than in the theological
or metaphysical interpretations which physicists put upon their own
activities. It is an application of this same approach that discovers the
significance of a legal principle in the actual behavior of judges, sheriffs,
and litigants rather than in conventional accounts of the principles that
judges, sheriffs, and litigants are "supposed" to follow.

In anthropology, the functional method represents a movement away
from two types of study: the naive reporting and classification of strik-
ing human peculiarities; and the more sophisticated attempt to trace
the historical origin, evolution, and diffusion of "complexes." Those
who have embraced the functional approach (not all of whom have in-
voked the word "functional"), have been primarily concerned to trace
the social consequences of diverse customs, beliefs, rituals, social arrange-
ments, and patterns of human conduct. This approach has led to fertile
fields that most earlier investigators missed. In the study of primitive
art, the new focus has brought into the foreground the question of the
craftsman's motivations and purposes, the significance of art as an
individualizing or socializing force, the whole problem of interplay be-
tween materials, techniques, and social needs.63 The study of primitive
social organization comes increasingly to deal with the functional signifi-
cance of family, clan, and tribal groupings as social determinants in
the production, distribution, and use of property, as well as in the
non-economic human relationships of education, religion, play, sex, and
companionship.^4 In the study of primitive law, the functional approach
raises to the fore the problem of incentives to obedience and the efficacy

62. Cf. Kaplan, Judaism as a Civilization (1934), c. 26 ("Functional Method of
Interpretation"); Elwang, The Social Function of Religious Belief (Univ. of Mo. Studies,
Social Science Series, Vol. 2, No. i, 1908); Foster, The Function of Religion in Man's
Struggle for Existence (1909).

63. See Boas, Primitive Art (1927).

64. See Boas, "The Social Organization and the Secret Societies of the Kwakiutl
Indians" (1895) Report of UJS. Nat, Museum, 315; Malinowski, The Family among the
Australian Aborigines (1913); Lowie, Primitive Society (1920); Goldenweiser, History,
Psychology and Culture (1933) Part III ("Totemism"); W. C. McKern, "Functional
Families of the Patwin" (Univ. of Calif. Pub, in Amer. Archaeology and Ethnology, Vol.
13, No. 7),

LOGIC, LAW, AND ETHICS

of these incentives, the techniques of law enforcement, and the relations
of rivalry or supplementation between legal sanctions and other social
forces,65

A similar use of the functional approach is characteristic of modern
political science, in which revolt against the classical supernatural con-
ception of sovereignty is a point of agreement uniting the most diverse
schools of contemporary thought. Typical is the following statement:

By institutions we merely mean collective behavior patterns, the
ways in which a community carries on the innumerable activities
of social life. . . . Society achieves certain results through collective
political actions. The means that it uses are the behavior patterns
which we call courts, legislative bodies, commissions, electorates,
administration. We idealize these institutions collectively and per-
sonify them in the State. But this idealization is pure fancy. The
State as a juristic or ideal person is the veriest fiction. It is real only
as a collective name for governmental institutions.66
Under the influence of the functional approach political theory ceases to
be a science of pure forms, and comes increasingly to grips with the
psychological motives and the technological forces that function through
political instruments.

In economics we have witnessed a similar shift of research from the
taxonomic or systematic analysis of economic "norms" to the study of
trie actual economic behavior of men and nations. Veblen's indictment
of classical economic theory may be applied word for word to classical
jurisprudence, if we merely substitute for the terms "economic" and
"economist" the terms "legal" and "jurist":

The standpoint of the classical economists, in their higher or
definitive syntheses and generalizations, may not inaptly be called
the standpoint of ceremonial adequacy. ... In effect, this precon-
ception imputes to things a tendency to work out what the instructed
common sense of the time accepts as the adequate or worthy end
of human effort. . . . This ideal of conduct is made to serve as a
canon of truth . . .

65. See Malinowski, Crime and Custom in Swage Society (19*6); Hogbin, Law and
Order in Polynesia (1934). In his introduction to the latter volume, Malinowski writes:
"Modern anthropology concentrates, above all, on what is now usually called the
function of a custom, belief or institution. By function we mean the part which 1$
played by any one factor of a culture within the general scheme,"

66. W. J. Shepard, "Democracy in Transition" (1935) «9 Am* Pol Sci, Rev. r, ct
H. J. Laski, Grammar of Politics (*d ed.> 1929); W. Y. Elliott, The Pragmatic Revolt
in Politics (1928).

TRANSCENDENTAL NONSENSE

The metaphors are effective, both in their homiletical use and as
a labor-saving device,— more effective than their user designs them
to be. By their use the theorist is enabled serenely to enjoin himself
from following out an elusive train of causal sequence. . . . The
scheme so arrived at is spiritually binding on the behavior of the
phenomena contemplated. . . . Features of the process that do not
lend themselves to interpretation in terms of the formula are ab-
normal cases and are due to disturbing causes. In all this the agencies
or forces causally at work in the economic life process are neatly
avoided. The outcome of the method, at its best, is a body of
logically consistent propositions concerning the normal relations of
things — a system of economic taxonomy.67

The same "standpoint of ceremonial adequacy" has to some extent
characterized the works of our classical jurists,— such masters of the
law as Beale, Williston, and even Wigmore. For them, as for the classical
economists, it was easy to avoid "an elusive train of causal sequence."
Principles, conceived as "spiritually binding on the behavior of the
phenomena contemplated," diverted their attention from the hard facts
of the legal world,— the human motivations and social prejudices of
judges, the stretching or shrinking of precedents in every washing, the
calculations of juries, and the fact of legislation, — and at the same time
diverted attention from the task of legal criticism.68

The age of the classical jurists is over, I think. The "Restatement
of the Law" by the American Law Institute is the last long-drawn-out
gasp of a dying tradition.69 The more intelligent of our younger law
teachers and students are not interested in "restating" the dogmas of
legal theology. There will, of course, be imitators and followers of the
classical jurists, in the years ahead. But I think that the really creative
legal thinkers of the future will not devote themselves, in the manner of
Williston, Wigmore, and their fellow masters, to the taxonomy of legal
concepts and to the systematic explication of principles of "justice"

67. Veblcn, "Why Is Economics Not an Evolutionary Science?" in The Place of
Science in Modern Civilization (1919) pp, 56, 65-67.

68. To say this is not to deny that such legal scholars have performed yeoman
service in clarifying the logical implications and inconsistencies of judicial doctrines.
Such analysis is useful, but it is not the sum and substance of legal science. Cf. F, S.
Cohen, Ethical Systems and Legal Ideals (1933), pp. 235-37.

69. See M. Franklin, "The Historic Function of the American Law Institute: Re-
statement as Transitional to Codification" (1934) 47 Han/, L. Rev. 1367; and cf. Patter-
son, "The Restatement of the Law of Contracts" (1933) 33 Columbia Law Rev. 397;
E, S. Robinson, "Law — An Unscientific Science" (1935) 44 Yale LJ. 235, 261.

LOGIC, LAW, AND ETHICS

and "reason," buttressed by "correct" cases. Creative legal thought will
more and more look behind the pretty array of "correct" cases to the
actual facts of judicial behavior, will make increasing use of statistical
methods in the scientific description and prediction of judicial behavior,
will more and more seek to map the hidden springs of judicial decision
and to weigh the social forces which are represented on the bench. And
on the critical side, I think that creative legal thought will more and
more look behind the traditionally accepted principles of "justice" and
"reason" to appraise in ethical terms the social values at stake in any
choice between two precedents.

"Social policy" will be comprehended not as an emergency factor in
legal argument but rather as the gravitational field that gives weight to
any rule or precedent, whether it be in constitutional law, in the law
of trade-marks, or in the most technical details of legal procedure.

There is implied in this shifting of the paths of legal research a
change in the equipment needs of the student of law. Familiarity with
the words of past judicial opinions and skill in the manipulation of legal
concepts are not enough for the student who seeks to understand the
social forces that control judicial behavior, nor for the lawyer who seeks
to use these forces.70

The vested interests of our law schools in an "independent" science
of law are undermined by every advance in our knowledge of the social
antecedents and consequences of judicial decision. It becomes the part of
discretion, in law schools aware of such advances, to admit that legal
science necessarily involves us in psychology, economics, and political
theory. Courses in our more progressive law schools are beginning to
treat, most gingerly, of the psychological doctrines embedded in our
rules of evidence, the sociological theories assumed in our criminal law,
the economic assumptions embalmed in our doctrines of constitutional
law, and the psychological, sociological, and economic facts which give
force and significance to rules and decisions in these and other fields
of law. The first steps taken are clumsy and evoke smiles of sympathy
or roars of laughter from critics of diverse temperaments. The will to
walk persists.

For the lawyer, no less than for the legal scholar, handling of materials
hitherto considered "non-legal" assumes increasing importance. And
courts that shut their doors to such non-legal materials, laying the taboos
of evidence law upon facts and arguments that reveal the functional

70. The implications of the functional method for legal education arc carefully
traced in Keyserling, "Social Objectives in Legal Education" (1955) $$ Columbia Law
Rev. 437.

TRANSCENDENTAL NONSENSE

social significance of a legal claim or a legal precedent, will eventually
learn that society has other organs — legislatures and legislative com-
mittees and administrative commissions of many sorts — that are willing
to handle, in straightforward fashion, the materials, statistical and de-
scriptive, that a too finicky judiciary disdains.

III. THE USES OF THE FUNCTIONAL METHOD IN LAW

The significance of the functional method in the field of law is clarified
if we consider the bearings of this method upon four traditional legal
problems: (i) The definition of law; (2) The nature of legal rules and
concepts; (3) The theory of legal decisions; and (4) The role of legal
criticism.

j. The Definition of Law

The starting point of functional analysis in American jurisprudence
is found in Justice Holmes' definition of law as "prophecies of what the
courts will do in fact." It is in "The Path of the Law," 71 that this
realistic conception of law is first clearly formulated:

If you want to know the law and nothing else, you must look
at it as a bad man, who cares only for the material consequences
which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or outside
of it, in the vaguer sanctions of conscience. . . . Take the funda-
mental question, What constitutes the law? You will find some text
writers telling you that it is something different from what is de-
cided by the courts of Massachusetts or England, that it is a system
of reason, that it is a deduction from principles of ethics or admitted
axioms or what not, which may or may not coincide with the de-
cisions. But if we take the view of our friend the bad man we shall
find that he does not care two straws for the axioms or deductions,
but that he does want to know what the Massachusetts or English
courts are likely to do in fact. I am much of his mind. The
prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.

71. Holmes, "Path of the Law" (1897) 10 Harv. L. Rev. 457, 459-61; Collected Legal
Papers (1921) p. 167, 171-73. A more precise definition, following Holmes, is given
in C. J. Keyser, "On the Study of Legal Science" (1929) 38 Yale LJ. 413.

LOGIC, LAW, AND ETHICS

A good deal of fruitless controversy has arisen out of attempts to
show that this definition of law as the way courts actually decide cases
is either true or false.72 A definition of law is useful or useless. It is not
true or false, any more than a New Year's resolution or an insurance
policy, A definition is in fact a type of insurance against certain risks
of confusion. It cannot, any more than can a commercial insurance
policy, eliminate all risks. Absolute certainty is as foreign to language
as to life. There is no final insurance against an insurer's insolvency.
And the words of a definition always carry their own aura of ambiguity.
But a definition is useful if it insures against risks of confusion more
serious than any that the definition itself contains.

"What courts do" is not entirely devoid of ambiguity. There is room
for disagreement as to what a court is, whether, for instance, the Inter-
state Commerce Commission or the Hague Tribunal or the Council of
Tesuque Pueblo is a court, and whether a judge acting in excess of
those powers which the executive arm of the government will recognize
acts as a court. There may even be disagreement as to the line of dis-
tinction between what courts do and what courts say, in view of the
fact that most judicial behavior is verbal. But these sources of ambiguity
in Holmes' definition of law are peripheral rather than central, and
easily remedied. They are, therefore, far less dangerous sources of con-
fusion than the basic ambiguity inherent in classical definitions of law
which involve a confusion between what is and what ought to be.

72. For examples of such argument see Dickinson, "Legal Rules: Their Function in
the Process of Decision" (1931) 79 V. of Pa, Law Rev, 833; H, Kantorowicz, "Some
Rationalism about Realism" (1934) 43 ^^ **J- IS4°: Frank, Law and the Modem
Mind (1930), pp, 127-28. The vicious circle in Dickinson's attempted refutation of the
realistic definition of law I have elsewhere analyzed. See F. S. Cohen, Ethical Systems
and Legal Ideals (1933), p. 12, n. 16, Kantorowicz repeats the same argument, empha-
sizing the charge that a definition of law in terms of court decisions "puts the cart
before the horse" and is as ridiculous as a definition of medicine in terms of the be-
havior of doctors. The parallel, though witty, is inapt: The correct analogy to a defi-
nition of the science of law as description of the behavior of judges would be a
definition of the science of medicine as a description of the behavior of certain para-
sites, etc. Kantorowicz accepts uncritically the metaphysical assumption that definition
is a 'one-way passage from the more general to the less general. But modern logic has
demonstrated the hollowness of this assumption. It is useful for certain purposes to
define points as functions of lines. For other purposes it is useful to define lines as
functions of points. It is just as logical to define law in terms of courts a* the other
way about. The choice is a matter of convenience, not of logic or truth,

The same metaphysical fallacy vitiates the opposite argument of Frank, namely, that
"primary" reality is particular and concrete, so that a definition of law must necessarily
be in terms of actual decisions. To the eyes of modern logic, the world contains things
and relations, neither of which can claim a superior grade of reality, One can start
a fight or a scientific inquiry either with a concrete fact or with a general principle.

TRANSCENDENTAL NONSENSE

The classical confusion against which realistic jurisprudence is a
protest is exemplified in Blackstone's classical definition of law as "a
rule of civil conduct, prescribed by the supreme power in a State, com-
manding what is right, and prohibiting what is wrong." 73

In this definition we have an attempt to unite two incompatible
ideas which, in the tradition of English jurisprudence, are most closely
associated with the names of Hobbes and Coke, respectively.

Hobbes, the grandfather of realistic jurisprudence, saw in law the
commands of a body to whom private individuals have surrendered their
force. In a state of nature there is war of all against all. In order to
achieve peace and security, each individual gives up something of his
freedom, something of his power, and the commands of the collective
power, that is the state, constitute law.

Hobbes' theory of law has been very unpopular with respectable
citizens, but I venture to think that most of the criticism directed against
it, in the last two and a half centuries, has been based upon a miscon-
ception of what Hobbes meant by a state of nature. So far as I know,
Hobbes never refers to the state of nature as an actual historical era, at
the end of which men came together and signed a social contract. The
state of nature is a stage in analysis rather than a stage of history. It
exists today and has always existed, to a greater or lesser degree, in
various realms of human affairs. To the extent that any social relation-
ship is exempt from governmental control it presents what Hobbes calls
a state of nature.

In international relations today, at least to the extent that nations
have not effectively surrendered their power through compacts establish-
ing such rudimentary agencies of international government as the
League of Nations or the Universal Postal Union, there is in fact a
state of nature and a war of all against all. This war, as Hobbes insists,
is present potentially before actual hostilities break out. Not only in
international relations, but in industrial relations today do we find
war of all against all, in regions to which governmental control has not
been extended, or from which it has been withdrawn— if it existed.

Mutual concessions and delegations of power involved in an arbitra-
tion contract, an international treaty, an industrial "code," a corporate
merger, or a collective labor agreement, are steps in the creation of
government, and call into operation new rules of law and new agencies
of law enforcement. Governments do not arise once and for all. Govern-
ment is arising today in many regions of social existence, and it arises
wherever individuals find the conflicts inherent in a state of nature
unendurable. The process by which government is created and its com-

73. BI. Corara,* 44*

LOGIC, LAW, AND ETHICS

mands formulated is a process of human bargaining, based upon mutual
consent but weighted by the relative power of conflicting individuals
or groups.

In all this conception of law, there is no appeal to reason or goodness.
Law commands obedience not because of its goodness, or its justice,
or its rationality, but because of the power behind it. While this power
does rest to a real extent upon popular beliefs about the value of
certain legal ideals, it remains true today, as Hobbes says in his Dialogue
on the Common Law, "In matter of government, when nothing else is
turned up, clubs are trump/' 74

Quite different from this realistic conception of law is the theory
made famous by Coke that law is only the perfection of reason.75 This
is a notion which has had considerable force in American constitutional
history, having served first as a basis for popular revolution against
tyrannical violations of "natural law" and the "natural rights" of Eng-
lishmen, and serving more recently as a judicial ground for denying
legality to statutes that judges consider "unreasonable." It would be
absurd to deny the importance of this concept of natural law or justice
as a standard by which to judge the acts of rulers, legislative, executive
or judicial. It is clear, however, that the validity of this concept of law
lies in a realm of values, which is not identical with the realm of social
actualities.

The confusion and ambiguity which infest the classical conception
of law, as formulated by Blackstone and implicitly accepted by most
modern legal writers, arise from the attempt to throw together two in-
consistent ideas. Blackstone attempts in effect to superimpose the pic-
ture of law drawn by the tender-minded hypocrite, Coke, upon the pic-
ture executed by the tough-minded cynic, Hobbes, and to give us a
composite photograph. Law, says Blackstone, is "a rule of civil conduct
prescribed by the supreme power in a State (Hobbes speaking) com-
manding what is right and prohibiting what is wrong (Coke speak-
ing)." 7e Putting these two ideas together, we have a fertile source of
confusion, which many important legal scholars since Blackstone have
found about as useful in legal polemics as the ink with which a cuttlefish
befuddles his enemies.

74. Hobbes, Dialogue between a Philosopher and a Student of the Common Law$ of
England (1681), "Of Punishments."

75. Co. Litt.* 976.

76. That "right" and "wrong" are used in this definition as ethical, rather than
strictly legal, terms is made clear in Blackstone's own exegesis upon his definition,
Cornm,* 54-55.

TRANSCENDENTAL NONSENSE

Those theorists who adhere to the Blackstonian definition of law
are able to spin legal theories to the heart's content without fear of refu-
tation. If legislatures or courts disagree with a given theory, it is a
simple matter to show that this disagreement is unjust, unreasonable,
monstrous and, therefore, not "sound law." On the other hand, the
intruding moralist who objects to a legal doctrine on the ground that
it is unjust or undesirable can be told to go back to the realm of morality
he came from, since the law is the command of the sovereign and not a
matter of moral theory. Perhaps the chief usefulness of the Blackstonian
theory is the gag it places upon legal criticism. Obviously, if the law
is something that commands what is right and prohibits what is wrong,
it is impossible to argue about the goodness or badness of any law, and
any definition that deters people from criticism of the law is very useful
to legal apologists for the existing order of society. As a modern authority
on legal reasoning declares, "Thus all things made legal are at the
same time legally ethical because it is law, and the law must be deemed
ethical or the system itself must perish." 77

2. The Nature of Legal Rules and Concepts

If the functionalists are correct, the meaning of a definition is found in
its consequences. The definition of a general term like "law" is signifi-
cant only because it affects all our definitions of specific legal concepts.

The consequence of defining law as a function of concrete judicial
decisions is that we may proceed to define such concepts as "contract,"
"property," "title," "corporate personality," "right," and "duty," simi-
larly as functions of concrete judicial decisions.*

The consequence of defining law as a hodge-podge of political force
and ethical value ambiguously amalgamated is that every legal concept,
rule, or question will present a similar ambiguity.

Consider the elementary legal question: "Is there a contract?"

When the realist asks this question, he is concerned with the actual

77. Brumbaugh, Legal Reasoning and Briefing (1917), p. 7.

* [Ed. note: In a later article, "The Problems of a Functional Jurisprudence/' the
following references were given to this statement. See: M. R. Cohen, "Property and
Sovereignty" in Law and the Social Order (1933), 41; R. L. Hale, "Coercion and
Distribution in a Supposedly Noncoercive State" (1923), 38 Political Science Quarterly,
470; R. L. Hale, "Rate Making and the Revision of the Property Concept" (1922),
2* Columbia Law Review, 209; Llewellyn, Cases and Materials on the Law of Sales
(1930); OHphant, "Mutuality of Obligation in Bilateral Contracts at Law" (1929), 25
Columbia Law Review, 705; (1928), 28 Columbia Law Review, 997; Cook, "Logical
and Legal Bases of the Conflict of Laws" (1924), 33 Yale Law Journal, 457.]

LOGIC, LAW, AND ETHICS

behavior of courts. For the realist, the contractual relationship, like
law in general, is a function of legal decisions. The question of what
courts ought to do is irrelevant here. Where there is a promise that
will be legally enforced there is a contract. So conceived, any answer
to the question "Is there a contract" must be in the nature of a prophecy
based, like other prophecies, upon past and present facts. So conceived,
the question "Is there a contract?" or for that matter any other legal
question, may be broken up into a number of subordinate questions,
each of which refers to the actual behavior of courts: (i) What courts are
likely to pass upon a given transaction and its consequences? (2) What
elements in this transaction will be viewed as relevant and important
by these courts? (3) How have these courts dealt with transactions in
the past which are similar to the given transaction, that is, identical in
those respects which the court will regard as important? (4) What forces
will tend to compel judicial conformity to the precedents that appear to
be in point (e.g. inertia, conservatism, knowledge of the past, or intelli-
gence sufficient to acquire such knowledge, respect for predecessors,
superiors, or brothers on the bench, a habit of deference to the estab-
lished expectations of the bar or the public) and how strong are these
forces? (5) What factors will tend to evoke new judicial treatment for
the transaction in question (e.g. changing public opinion, judicial
idiosyncrasies and prejudices, newly accepted theories of law, society or
economics, or the changing social context of the case) and how powerful
are these factors?

These are the questions which a successful practical lawyer faces
and answers in any case. The law, as the realistic lawyer uses the term,
is the body of answers to such questions. The task of prediction in-
volves, in itself, no judgment of ethical value. Of course, even the most
cynical practitioner will recognize that the positively existing ethical
beliefs of judges are material facts in any case because they determine
what facts the judge will view as important and what past rules he
will regard as reasonable or unreasonable and worthy of being extended
or restricted. But judicial beliefs about the values of life and the ideals
of society are facts, just as the religious beliefs of the Andaman Islanders
are facts, and the truth or falsity o£ such moral beliefs is a matter of
complete unconcern to the practical lawyer, as to the scientific observer.

Washed in cynical acid,* every legal problem can thus be interpreted
as a question concerning the positive behavior of judges.

* [Ed. note: The reference is to "„ . . the vague circumference of the notion of
duty shrinks and at the same time grows more precise when we wash it with cynical
acid and expel everything except the object of our study, the operations of the law,"
Holmes, "The Path of the Law" (1897), Harvard Law Review, 457, 4$*.]

TRANSCENDENTAL NONSENSE

There is a second and radically different meaning which can be
given to our type question, "Is there a contract?" When a judge puts
this question, in the course of writing his opinion, he is not attempting
to predict his own behavior. He is in effect raising the question, in an
obscure way, of whether or not liability should be attached to certain
acts. This is inescapably an ethical question. What a judge ought to
do in a given case is quite as much a moral issue as any of the traditional
problems of Sunday School morality.78

It is difficult for those who still conceive of morality in other-
worldly terms to recognize that every case presents a moral question
to the court. But this notion has no terrors for those who think of
morality in earthly terms. Morality, so conceived, is vitally concerned
with such facts as human expectations based upon past decisions, the
stability of economic transactions, and even the maintenance of order
and simplicity in our legal system. If ethical values are inherent in all
realms of human conduct, the ethical appraisal of a legal situation is
not to be found in the spontaneous outpourings of a sensitive conscience
unfamiliar with the social context, the background of precedent, and
the practices and expectations, legal and extra-legal, which have grown
up around a given type of transaction.

It is the great disservice of the classical conception of law that it
hides from judicial eyes the ethical character of every judicial question,
and thus serves to perpetuate class prejudices and uncritical moral as-
sumptions which could not survive the sunlight of free ethical con-
troversy.

The Blackstonian conception of law as half-mortal and half-divine
gives us a mythical conception of contract. When a master of classical
jurisprudence like Williston asks the question "Is there a contract?", he
has in mind neither the question of scientific prediction which the prac-
tical lawyer faces, nor the question of values which the conscientious
judge faces. If he had in mind the former question, his studies would
no doubt reveal the extent to which courts actually enforce various types
of contractual obligation.79 His conclusions would be in terms of prob-
ability and statistics. On the other hand, if Professor Williston were

78. Cf. F. S. Cohen, "Modern Ethics and the Law" [above, p. 17] on the conception
of "Sunday School morality."

79. So hallowed is the juristic tradition of ignoring the actual facts of cases that
a distinguished jurist, Professor Goodhart, can argue in all seriousness that the practice
adopted by some American law libraries of putting the records of cases on file is very
dangerous. Students might be distracted from the official ratio deddendi of the case,
and might try to discover what the actual facts of the case were, which would be a
death-blow to traditional jurisprudence. See Goodhart, "Determining the Ratio
Deddendi of a Case" (1930) 40 Yale LJ. 161, 172.

LOGIC, LAW, AND ETHICS

interested in the ethical aspects of contractual liability, he would un-
doubtedly offer a significant account of the human values and social
costs involved in different types of agreements and in the means of their
enforcement. In fact, however, the discussions of a Williston will
oscillate between a theory of what courts actually do and a theory of
what courts ought to do, without coming to rest either on the plane of
social actualities or on the plane of values long enough to come to grips
with significant problems. This confused wandering between the world
of fact and the world of justice vitiates every argument and every
analysis.

Intellectual clarity requires that we carefully distinguish between the
two problems of (i) objective description, and (2) critical judgment,
which classical jurisprudence lumps under the same phrase. Such a dis-
tinction realistic jurisprudence offers with the double-barreled thesis:
(i) that every legal rule or concept is simply a function of judicial de-
cisions to which all questions of value are irrelevant, and (2) that the
problem of the judge is not whether a legal rule or concept actually ex-
ists but whether it ought to exist. Clarity on two fronts is the result.
Description of legal facts becomes more objective, and legal criticism
becomes more critical.

The realistic lawyer, when he attempts to discover how courts are
actually dealing with certain situations, will seek to rise above his own
moral bias and to discount the moral bias of the legal author whose
treatise he consults.

The realistic author of textbooks will not muddy his descriptions
of judicial behavior with wishful thinking; if he dislikes a decision or
line of decisions, he will refrain from saying, "This cannot be the law
because it is contrary to sound principle," and say instead, "This is the
law, but I don't like it," or more usefully, "This rule leads to the follow-
ing results, which are socially undesirable for the following reasons . . ."

The realistic advocate, if he continues to use ritual language in
addressing an unrealistic court, will at least not be fooled by his own
words: he will use his "patter" to induce favorable judicial attitudes
and at the same time to distract judicial attention from precedents and
facts that look the wrong way (as the professional magician uses his
"patter" to distract the attention of his audience from certain facts).
Recognizing the circularity of conceptual argument, the realistic ad-
vocate will contrive to bring before the court the human values that
favor his cause, and since the rules of evidence often stand in the way,
he will perforce bring his materials to judicial attention by sleight-of-
hand — through the appeal of a "sociological brief' to "judicial notice/'

TRANSCENDENTAL NONSENSE

through discussion of the background and consequences of past cases
cited as precedents, through elaboration and exegesis upon admissible
evidence, or even through a political speech or a lecture on economics
in the summation of his case or argument.

The realistic judge, finally, will not fool himself or anyone else by
basing decisions upon circular reasoning from the presence or absence
of corporations, conspiracies, property rights, titles, contracts, proximate
causes, or other legal derivatives of the judicial decision itself. Rather,
he will frankly assess the conflicting human values that are opposed
in every controversy, appraise the social importance of the precedents
to which each claim appeals, open the courtroom to all evidence that
will bring light to this delicate practical task of social adjustment, and
consign to Von Jhering's heaven of legal concepts all attorneys whose
only skill is that of the conceptual acrobat.

5. The Theory of Legal Decisions

The uses of the functional approach are not exhausted by "realistic
jurisprudence." "Realistic jurisprudence," as that term is currently
used,80 is a theory of the nature of law, and therefore a theory of the
nature of legal rules, legal concepts, and legal questions. Its essence is
the definition of law as a function of judicial decisions. This definition
is of tremendous value in the development of legal science, since it
enables us to dispel the supernatural mists that envelop the legal order
and to deal with the elements of the legal order in objective, scientific
terms. But this process of definition and clarification is only a pre-
liminary stage in the life of legal science. When we have analyzed
legal rules and concepts as patterns of decisions, it becomes relevant to
ask, "What are judicial decisions made of?"

If we conceive of legal rules and concepts as functions of judicial
decisions, it is convenient, for purposes of this analysis, to think of these
decisions as hard and simple facts. Just as every physical object may be
analyzed as a complex of positive and negative electrons, so every legal
institution, every legal rule or concept may be analyzed as a complex
of plaintiff decisions and defendant decisions. But simplicity is relative
to the level of analysis. For the chemist, the atom is the lowest term
of analysis. But the physicist cannot stop the process of analysis with

80. See K. N. Llewellyn, "A Realistic Jurisprudence — The Next Step" (1930) 30
Columbia Law Rev. 431; Pound, "The Call for a Realist Jurisprudence" (1931) 44
Han;. L. Rev. 697; Llewellyn, "Some Realism about Realism: Responding to Dean
Pound" (1931) 44 Harv. L* Rev. 1222.

LOGIC, LAW, AND ETHICS

the atom or even the electron. It would be heresy to the faith of science
to endow either with final simplicity and perpetual immunity from
further analysis. Unfortunately, certain advocates of realistic jurispru-
dence, after using the functional method to break down rules and con-
cepts into atomic decisions, refuse to go any further with the analytic
process. They are willing to look upon decisions as simple unanalyzable
products of judicial hunches or indigestion.

The ''hunch" theory of law,81 by magnifying the personal and ac-
cidental factors in judicial behavior, implicitly denies the relevance of
significant, predictable, social determinants that govern the course of
judicial decision. Those who have advanced this viewpoint have per-
formed a real service in indicating the large realm of uncertainty in the
actual law. But actual experience does reveal a significant body of pre-
dictable uniformity in the behavior of courts. Law is not a mass of
unrelated decisions nor a product of judicial bellyaches. Judges are
human, but they are a peculiar breed of humans, selected to a type and
held to service under a potent system of governmental controls. Their
acts are "judicial" only within a system which provides for appeals, re-
hearings, impeachments, and legislation. The decision that is "peculiar"
suffers erosion— unless it represents the first salient manifestation of
a new social force, in which case it soon ceases to be peculiar. It is
more useful to analyze a judicial "hunch" in terms of the continued im-
pact of a judge's study of precedents, his conversations with associates,
his reading of newspapers, and his recollections of college courses, than
in strictly physiological terms.

A truly realistic theory of judicial decisions must conceive every
decision as something more than an expression of individual person-
ality, as concomitantly and even more importantly a function of social
forces, that is to say, as a product of social determinants and an index
of social consequences. A judicial decision is a social event. Like the
enactment of a Federal statute, or the equipping of police cars with
radios, a judicial decision is an intersection of social forces: Behind
the decision are social forces that play upon it to give it a resultant mo-
mentum and direction; beyond the decision are human activities affected
by it. The decision is without significant social dimensions when it is

81* See Hutcheson, 'The Judgment Intuitive; The Function oC the 'Hunch1 iu
Judicial Decisions" (1929) 14 Corn. L,£. 274; Hutcheson, "Lawyer's Law and thf
Little, Small Dice" (1932) 7 Tulane £. Rev. j; Frank, Law and the Modern Mind
(1930)', c 12-13; T, Schroeder, "The Psychologic Study of Judicial Opinions'* (1918)
6 Calif, L. Rev. 89,

TRANSCENDENTAL NONSENSE

viewed simply at the moment in which it is rendered. Only by probing
behind the decision to the forces which it reflects, or projecting beyond
the decision the lines of its force upon the future, do we come to an
understanding of the meaning of the decision itself. The distinction
between "holding" and "dictum" in any decision is not to be discovered
by logical inspection of the opinion or by historical inquiry into the
actual facts of the case.82 That distinction involves us in a prediction,
a prophecy of the weight that courts will give to future citations of the
decision rendered. This is a question not of pure logic but of human
psychology, economics, and politics.

What is the meaning of a judicial decision, summed up in the words,
"Judgment for the plaintiff"? Obviously, the significance of the de-
cision, even for the parties directly involved in the case, depends upon
certain predictable uniformities of official behavior, e.g. that a sheriff
or marshal will enforce the decision, in one way or another, over a
period of time, that the given decision will be respected or followed in
the same court or other courts if the question at issue is relitigated, and
that certain procedures will be followed in the event of an appeal, etc.
When we go beyond the merely private significance of an actual de-
cision, we are involved in a new set of predictions concerning the extent
to which other cases, similar in certain respects, are likely to receive the
same treatment in the same courts or in other courts within a given
jurisdiction. Except in the context of such predictions the announce-
ment of a judicial decision is only a noise. If reasonably certain pre-
dictions of this sort could never be made, as Jerome Frank at times
seems to say,83 then all legal decisions would be simply noises, and no
better grist for science than the magical phrases of transcendental juris-
prudence.

If the understanding of any decision involves us necessarily in prophecy
(and thus in history), then the notion of law as something that exists
completely and systematically at any given moment in time is false.84

82, Compare the orthodox wild goose chase of Goodhart after a formula which
will determine the "real" ratio decidendi of a case (Goodhart, "Determining the
Ratio Decidendi of a Case" (1930) 40 Yale LJ. 161) with sane description by
Llewellyn of the way in which cases come to stand for propositions of narrow or wide
scope. The Bramble Bush (1930), pp. 47, 61-66. Cf. also Oliphant, "A Return to Stare
Decisis" (1928) 6 Am. L. School Rev. 215, 217-18; F. S. Cohen, Ethical Systems and
Legal Ideals (1933), pp. 33~37-

83, See Frank, Law and the Modern Mind (1930), pp. 7, 53, 104-11, 132-34-

84, In this, law is no different from other social institutions or physical objects.
Cf. C. I. Lewis, op. cit, supra note 48, c. 5.

LOGIC, LAW, AND ETHICS

Law is a social process, a complex of human activities, and an adequate
legal science must deal with human activity, with cause and effect, with
the past and the future. Legal science, as traditionally conceived, at-
tempts to give an instantaneous snapshot of an existing and completed
system of rights and duties. Within that system there are no temporal
processes, no cause and no effect, no past and no future. A legal de-
cision is thus conceived as a logical deduction from fixed principles.
Its meaning is expressed only in terms of its logical consequences. A
legal system, thus viewed, is as far removed from temporal activity as a
system of pure geometry. In fact, jurisprudence is as much a part of
pure mathematics as is algebra, unless it be conceived as a study of
human behavior — human behavior as it molds and is molded by judicial
decisions. Legal systems, principles, rules, institutions, concepts, and
decisions can be understood only as functions of human behavior.85

Such a view of legal science reveals gaps in our legal knowledge
to which, I think, legal research will give increasing attention.

We are still in the stage of guesswork and accidentally collected in-
formation, when it comes to formulating the social forces which mold
the course of judicial decision. We know, in a general way, that domi-
nant economic forces play a part in judicial decision, that judges usually
reflect the attitudes of their own income class on social questions, that
their views on law are molded to a certain extent by their past legal
experience as counsel for special interests, and that the impact of coun-
sel's skill and eloquence is a cumulative force which slowly hammers
the law into forms desired by those who can best afford to hire legal
skill and eloquence; but nobody has ever charted, in scientific fashion,
the extent of such economic influences.86 We know, too, that judges are
craftsmen, with aesthetic ideals,87 concerned with the aesthetic judgments

85. "To say that a legal institution, — private property, the federal government of
the United States, Columbia University, — exists is to say that a group of persons
is doing something, is acting in some way. It is to point to a particular aspect of
human behavior. . . . But a legal institution is something more than the way men
act on a single occasion. ... A legal institution is the happening over and over
again of the same kind of behavior/' U. Moore, op. cit. supra note 33,

86. Promising first steps towards such a study have been taken in: Brooks Adams,
op. cit. supra note 32; Gustavus Myers, History of the Supreme Court (1912); Boudin,
op. cit. supra note 2*7 (1932); Walter Nelles, "Commonwealth v. Hunt" (1932) 32
Columbia Law Rev. 1128; Nelles, "The First American Labor Case" (193 1) 41 Yale
LJ. 165; Max Lerner, "The Supreme Court and American Capitalism" (1933) 48
Yale LJ. 668; W. Hamilton, "Judicial Tolerance of Farmers' Cooperatives" (1929)
38 Yale LJ, 936; articles of Haines, Brown and Cushman cited supra note 38,

87. Cf. F. S. Cohen, Ethical Systems and Legal Ideals (1933)* pp* §6-61; "Modern
Ethics and the Law" [above, pp. 17, 30-32].

TRANSCENDENTAL NONSENSE

that the bar and the law schools will pass upon their awkward or skill-
ful, harmonious or unharmonious, anomalous or satisfying, actions and
theories; but again we have no specific information on the extent of
this aesthetic bias in the various branches of the law. We know that
courts are, at least in this country, a generally conservative social force,
and more like a brake than a motor in the social mechanism, but we
have no scientific factual comparison of judicial, legislative, and execu-
tive organs of government, from the standpoint of social engineering.
Concretely and specifically, we know that Judge So-and-so, a former
attorney for a non-union shop, has very definite ideas about labor in-
junctions, that another judge, who has had an unfortunate sex life, is
parsimonious in the fixing of alimony; that another judge can be
"fixed" by a certain political "boss"; that a series of notorious kidnap-
pings will bring about a wave of maximum sentences in kidnapping
cases. All this knowledge is useful to the practicing lawyer, to the public
official, to the social reformer, and to the disinterested student of society.
But it is most meager, and what little of it we have, individually, is not
collectively available. There is at present no publication showing the
political, economic, and professional background and activities of our
various judges. Such a reference work would be exceedingly valuable, not
only to the practical lawyer who wants to bring a motion or try a case
before a sympathetic court, but also to the disinterested student of the
law. Such a Judicial Index is not published, however, because it would
be disrespectable.88 According to the classical theory, these things have
nothing to do with the way courts decide cases. A witty critic of the
functional approach regards it as a reductio ad absurdum of this ap-
proach that law schools of the future may investigate judicial psychology,
teach the art of bribery, and produce graduate detectives.89 This is far
from a reductio ad absurdum. Our understanding of the law will be
greatly enriched when we learn more about how judges think, about
the exact extent of judicial corruption, and about the techniques for
investigating legally relevant facts. Of course, this knowledge may be used
for improper purposes, but cannot the same be said of the knowledge
which traditional legal education distributes?

If we know little today of the motivating forces which mold legal
decisions, we know even less of the human consequences of these de-
cisions. We do not even know how far the appellate cases, with which

88. Frank reports (law and the Modern Mind, pp. 112-15) the discontinuance of
a statistical study of the decisions of various New York magistrates which revealed
startling differences in the treatment of certain offenses.

89. Kantorowicz, "Some Rationalism about Realism" (1934) 43

LOGIC, LAW, AND ETHICS

legal treatises are almost exclusively concerned, are actually followed
in the trial courts.90 Here, again, the experienced practitioner is likely
to have accumulated a good deal of empirical information, but the young
law clerk, just out of a first-rate law school, is not even aware that such
a problem exists. Likewise, the problem of the actual enforcement of
judgments has received almost no critical study. Discussion of the extent
to which various statutes are actually enforced regularly moves in the
thin air of polemic theory. It is usually practically impossible to find
out whether a given statute has ever been enforced unless its enforce-
ment has raised a legal tangle for appellate courts.

When we advance beyond the realm of official conduct and seek to
discover the social consequences of particular statutes or decisions, we
find a few promising programs of research 91 but almost no factual
studies.**2 Today the inclusion of factual annotations in a code, show-
ing the extent and effects of law enforcement, would strike most lawyers
as almost obscene. But notions of obscenity change, and every significant
intellectual revolution raises to prominence facts once obscure and
disrespectable. It is reasonable to expect that some day even the im-
pudencies of Holmes and Llewellyn will appear sage and respectable.

4. Legal Criticism

It is perhaps the chief service of the functional approach that in
cleansing legal rules, concepts, and institutions of the compulsive flavors

90. The Institute of Law of Johns Hopkins broke the ice in the modern study of
trial court decisions. See Study of Civil Justice in New York (1931). See also Marshall,
Study of Judicial System of Maryland (1932); C. E. Clark, "Fact Research in Law
Administration" (1928) 2 Conn. Bar J. 211; B, L, Shientag and F. S, Cohen, "Summary
Judgments in the Supreme Court of New York" (1932) 32 Columbia Law Rev. 825, and
works cited therein, notes 6 and 7; Saxe, "Summary Judgments in New York— A
Statistical Study" (1934) 19 Corn. £.Q. 237; B. L. Shientag, "Summary Judgment"
(1935) 4 Fordham L. Rev, 186.

91. See, for example, Pound, "The Scope and Purpose of Sociological Jurisprudence"
(1911-1912) 24 Harv. L. Rev. 591, 25 id. 140, 489; F, K. Beutel, "Some Implications of
Experimental Jurisprudence" (1934) 48 Harv. L. Rev. 169, 191-94.

92. Notable exceptions are: McCracken, Strike Injunctions in the New South (1931);
Brissenden and Swayzee, "The Use of the Labor Injunction in the New York Needle
Trades" (1929) 44 Pol. Sci. Q. 548, (1930) 45 id. 87. In addition to these direct studies
of the effects of legal rules or decisions, there is a growing literature on the social
materials with which law is concerned. Examples of such work are: Pound and Frank-
furter, Criminal Justice in Cleveland (1922); R, R, Powell and Looker, "Decedents'
Estates: Illumination from Probate and Tax Records" (1930) 30 Columbia Law Rev.
919; Smith, Lilly and Bowling, "Compensation for Automobile Accidents; A Sym-
posium" (1932) 32 Columbia Law Rev. 785; S. and E. T, Glueck, "Predictability in the
Administration of Criminal Justice" (1939) 42 Harv. L. Rev. 297.

TRANSCENDENTAL NONSENSE

of legal logic or metaphysics, room is made for conscious ethical criti-
cism of law. In traditional jurisprudence, criticism, where it exists, is
found masked in the protective camouflage of transcendental nonsense:
"The law must (or cannot) be thus and so, because the nature of con-
tracts, corporations, or contingent remainders so requires." The func-
tional approach permits ethics to come out of hiding. When we recog-
nize that legal rules are simply formulae describing uniformities of
judicial decision, that legal concepts likewise are patterns or functions
of judicial decisions, that decisions themselves are not products of
logical parthenogenesis born of pre-existing legal principles but are
social events with social causes and consequences, then we are ready
for the serious business of appraising law and legal institutions in terms
of some standard of human values.

The importance for legal criticism of clear, objective description of
judicial behavior, its causes and its consequences, is coming to be gen-
erally recognized. What is not so easily recognized is the importance for
objective legal science of legal criticism.

Since the brilliant achievements of Bentham, descriptive legal science
has made almost no progress in determining the consequences of legal
rules.93 This failure of scholarship, in the light of the encouraging
progress of modern research into the antecedents and social context of
judicial decision, calls for explanation.

Possibly this gap is to be explained in terms of an inherited as-
sumption that statutes and decisions are self-executing, that the con-
sequences of a law or a judgment are, therefore, clearly indicated by
the language of the statute or decision itself, and that factual research
is therefore a work of supererogation. Possibly this failure of research
is to be explained in terms of the dominance of the private lawyer
in our legal education. The private attorney is interested in the causes
of judicial decisions, but his interest in consequences is likely to stop
with the payment of a fee, I am inclined to think, however, that the
failure of our legal scholarship in this direction may be attributed to
a more fundamental difficulty. The prospect of determining the conse-
quences of a given rule of law appears to be an infinite task, and is in-
deed an infinite task unless we approach it with some discriminating

93. The following spiritual exercise is recommended by Professor Kantorowicz. Let
the unconverted lawyer or law student read a code of laws in the following way:
"Let him ask himself with respect to each statement , . . what harms would social
life undergo if instead of this statement the opposite were enacted. And then let him
turn to all textbooks, commentaries, monographs and reports of decisions and see how
many questions of this sort he will find answered and how many he will find even
put." Rechtswissenschaft und Sociologist (1911) 8, quoted in Pound, supra note 91, 25
Harv. L. Rev. 489, 513,

LOGIC, LAW, AND ETHICS

criterion of what consequences are important. Now a criterion of im-
portance presupposes a criterion of values, which is precisely what
modern thinkers of the "sociological" and "realistic" schools of juris-
prudence have never had. Dean Pound has talked for many years of the
"balancing" of interests, but without ever indicating which interests are
more important than others or how a standard of weight or fineness
can be constructed for the appraisal of "interests." 94 Contemporary
"realists" have, in general, either denied absolutely that absolute stand-
ards of importance can exist,95 or else insisted that we must thoroughly
understand the facts as they are before we begin to evaluate them. Such
a postponement of the problem of values is equivalent to its repudiation.
We never shall thoroughly understand the facts as they are, and we are
not likely to make much progress towards such understanding unless
we at the same time bring into play a critical theory of values. In terms
of such a theory, particular human desires and habits are important, and
the task of research into legal consequences passes from the realm of
vague curiosity to the problem form: How do these rules of law
strengthen or change these important habits and satisfy or impede these
important desires?

The positive task of descriptive legal science cannot, therefore, be
entirely separated from the task of legal criticism. The collection of
social facts without a selective criterion of human values produces a
horrid wilderness of useless statistics.06 The relation between positive legal
science and legal criticism is not a relation of temporal priority, but
of mutual dependence.97 Legal criticism is empty without objective de-
scription of the causes and consequences of legal decisions. Legal descrip-
tion is blind without the guiding light of a theory of values, It is through
the union of objective legal science and a critical theory of social values
that our understanding of the human significance of law will be en-
riched. It is loyalty to this union of distinct disciplines that will mark
whatever is of lasting importance in contemporary legal science and
legal philosophy.

94. Cf. W. L. Grossman, "The Legal Philosophy of Roscoe Pound*' (1935) 44 Yale
LJ. 605, 608-11; John C. H. Wu, "The Juristic Philosophy of Roscoe Pound" (1924)
18 HL Law Rev. 285, 294-304.

95. See U. Moore, op. cit. supra note 32, 609, 612; W. Nelles, Book Review (1953) 33
Columbia Law Rev. 763, 765-768.

96. See Pound, "The Call for a Realist Jurisprudence" (1931) 44 Haw* £,* Rev,
697, 701.

97. I have attempted to trace these relations in some detail in Ethical Systems and
Legal Ideals (1933) and again, more briefly and in words of one and two syllables, m
"Modern Ethics and the Law" (above, p. 17],

The Problems of a Functional Jurisprudence

IN THE lists of jurisprudence, the champion of a new theory is generally
expected to prove the virtue of the lady for whom he fights by splitting
the skulls of those who champion other ladies. Yet despite the struggle
of schools that has been waged for the last forty years in our law reviews,1
it is possible, I think, to defend the functional approach in jurispru-
dence without attacking the doctrines or the achievements of any other
school.

In jurisprudence as in other fields of thought, we are more likely to
reach a just appraisal of a new school by asking not, "What thesis does
it defend?" but rather, "What question does it put?" The most significant
advances in intellectual history are characterized by the focusing of
critical attention upon facts and issues which were formerly considered
unimportant, indecent, or self-evident.

Modern physics begins when Galileo and his fellow workers first
formulate such problems as, "How fast does a falling body fall?" Galileo
is distinguished from his predecessors not because they differed in their

i. See Holmes, "The Path of the Law" (1897), 10 Harvard Law Review 457, Collected
Legal Papers (1920), p, 167; Pound, "Law in Books and Law in Action" (1910), 44
American Law Review 12; Pound, "Mechanical Jurisprudence*' (1908), 8 Columbia
Law Review 605; M. R. Cohen, "The Process of Judicial Legislation" (1914), 48
American Law Review 161; Law and the Social Order (1933), p. 112; Cook, "Logical
and Legal Bases of the Conflict of Laws" (1924), 33 Yale Law Journal 457; Oliphant,
"A Return to Stare Decisis" (1928), 6 American Law School Review 215; Llewellyn,
"A Realistic Jurisprudence— -The Next Step" (1930), 30 Columbia Law Review 431;
Pound, "The Call for a Realist Jurisprudence" (1931), 44 Harvard Law Review 697;
Llewellyn, "Some Realism about Realism — Responding to Dean Pound" (1931), 44
Harvard Law Review; Kantorowicz, "Some Rationalism about Realism" (1934), 43
Yale Law Journal 1240; John C. H. Wu, "Realistic Analysis of Legal Concepts: A
Study in the Legal Method of Mr. Justice Holmes" (1932), 5 China Law Review i, 2;
Yntema, "The Rational Basis of Legal Science" (1931), 31 Columbia Law Review 925;
M. R. Cohen, "Philosophy and Legal Science" (1932), 32 Columbia Law Review 1103,
Law and the Social Order (1933), p. 219; F. S. Cohen, "Transcendental Nonsense and
the Functional Approach" [above, p. 33].

Published in Modern Law Review (London), 1937.

LOGIC, LAW, AND ETHICS

answers to such questions, but rather because Galileo thought such
questions were worth answering while earlier "natural philosophers" had
considered such questions trivial as compared with theological or
ideological questions concerning "perfect motion" and the "proper
place" of things in the world-scheme.

The remarkable intellectual advance achieved during the past century
in formal logic is very largely based upon the initiative of such mathe-
maticians as Lobachewsky and Riemann, who, challenging the "self-
evidence" of Euclid's parallel postulate, asked: "What consequences will
follow from geometric assumptions other than those of Euclid?" The
result of such investigations was not to "disprove" Euclidean geometry,
but rather to show it in its true perspective as one logical system within
a matrix of systems, all of which have possible applications to the actual
world.

If history-writing is on a more realistic plane today than it was a
century ago, this is certainly due very largely to the work of Karl Marx.
Non-socialist historians may reject entirely the thesis of the class strug-
gle, and even the general doctrine of social evolution, but they cannot
reject or forget the insistent questions that Marx put, "How is this or
that event related to the system of production and distribution that
prevails at the time and place?" Certainly the persistent reiteration of
this question in fields of social organization, politics, morality, and law
is the first characteristic that distinguishes modern history-writing from
the pre-Marxian histories that ascribe most historical events to the char-
acter of the sovereign, the fortunes of warfare, or the spirit of peoples.

Similarly it might be shown that in fields of biology, economics,
psychology, and philosophy, to mention no others, the enduring contri-
butions of new schools of thought have been not the new theories they
have defended, which have more often than not turned out to be
erroneous, but the new questions they have put.

Let us then survey the role of functionalism in legal science not as
a refutation of past theories of law nor even as an improvement in our
present methods of legal research, but rather as an insistence on certain
questions that until recently have been generally ignored in legal studies.
Specifically, the functional method poses such questions as: How do rules
of law work? Are certain rules of law, so-called, merely ritual observances
which have no verifiable relation to the decisions of judges who recite
them? To what extent are laws actually obeyed? What are the limits of
effective law enforcement? What are the social mechanisms and institu-
tions that make certain rules of law effective and leave others dead

FUNCTIONAL JURISPRUDENCE

letters? When rules of law are obeyed or disobeyed, what consequences
actually follow from such conduct?

More generally, these questions may be compressed in the formula,
"What is the human meaning of the law?" This is a very different ques-
tion from the question, "How has law developed?" which historical
jurists have asked and answered. It is very different from the question,
"What is the nature or structure of law?" with which analytical jurists
have been concerned. It is very different from the question, "What is the
purpose of law?" which writers on justice and natural rights have pressed.

Precisely because it is a very different question from these questions
that have occupied so large a part of traditional jurisprudence, the
question of the human significance of law must be posed as a supple-
ment to establish lines of inquiry in legal science rather than as a sub-
stitute for them. Indeed, there is an intimate and mutual interdepend-
ence among these lines of inquiry, historical, analytical, ethical, and
functional.

The law of the present is a tenuous abstraction hovering between
legal history and legal prophecy. The functionalist cannot describe the
present significance of any rule of law without reference to historical
elements. It is equally true that the historical jurist cannot reconstruct
the past unless he grasps the meaning of the present.

The functionalist must have recourse to the logical instruments that
analytical jurisprudence furnishes. Analytical jurisprudence, in turn, may
develop more fruitful modes of analysis with a better understanding of
the law-in-action.

Functional description of the workings of a legal rule will be indis-
pensable to one who seeks to pass ethical judgments on law. The func-
tionalist, however, is likely to be lost in an infinite maze of trivialities
unless he is able to concentrate on the important consequences of a
legal rule and ignore the unimportant consequences, a distinction which
can be made only in terms of an ethical theory.

Recognizing then, that functional jurisprudence is not a new set
of answers to the traditional problems of jurisprudence, nor even a
new method of getting such answers, but rather a new set of problems,
let us examine the issues which are thus brought to the forefront of legal
consciousness. In general, these issues may be considered under two
headings: the analysis of law as a function of judicial behavior; and
the appraisal of law as a determinant of human behavior.

Functionalism, as a philosophy, may be defined as the view that a
thing does not have a "nature" or "essence" or "reality" underlying its

LOGIC, LAW, AND ETHICS

manifestations and effects and apart from its relations with other things;
that the nature, essence, or reality of a thing is its manifestations, its
effects, and its relations with other things; and that, apart from these,
"it" is nothing, or at most a point in logical space, a possibility of some-
thing happening. To defend this philosophical viewpoint,2 or even to
canvas the applications of this viewpoint in modern science 3 would take
us beyond the assigned limits of this paper. We shall concern ourselves
not with the truth or falsity of a doctrine but with the significance of
functionalism as a methodologic principle. Functionalism as a method
may be summed up in the directive: If you want to understand some-
thing, observe it in action.

Applied within the field of law itself, this approach leads to a defini-
tion of legal concepts, rules, and institutions in terms of judicial de-
cisions or other acts of state-force. Whatever cannot be so translated is
functionally meaningless.4 Applied to the larger field of general human
behavior, this same approach leads to an appraisal of law in terms of

2. The viewpoint is something common to logical positivism, pragmatism, opera -
tionalism, and Whitehead's "method of extensive abstraction." See C. S. Peirce, Chance,
Love and Logic (1923); Collected Papers (1931-34), especially vol. 5; James, Pragmatism
(1908); Essays in Radical Empiricism (1912); Dewey, "Appearing and Appearance," in
Philosophy and Civilization (1931), p. 51; Russell, Our Knowledge of the External
World as a Field for Scientific Method in Philosophy (1914); Mysticism and Logic
(1918); Whitehead, The Principles of Natural Knowledge (1919); The Concept of
Nature (1920); C. I. Lewis, Mind and the World-Order (1929); C. 0, Broad, Scientific
Thought (1923); Wittgenstein, Tractatus Logico-Philosophicus (1922); Carnap, "Ueber-
windung der Metaphysik durch logische Analyse der Sprache" (1932), 2 Erkenntnis,
No. 4; J. E. Boodin, "Functional Realism" (1934), 43 Philosophical Review 147.

3. See, for applications of a similar approach —

In mathematics: Russell, Introduction to Mathematical Philosophy (1919).

In psychology: W. James, Essays in Radical Empiricism (1912).

In religion: Max Weber, The Protestant Ethic and the Spirit of Capitalismt trans,
by Parsons (1930); R. H, Tawney, Religion and the Rise of Capitalism (1926); James,
The Varieties of Religious Experience (1902); Kaplan, Judaism as a Civilisation (1934),
c, 26 ("Functional Method of Interpretation").

In anthropology: Boas, Primitive Art (1927); Boas, "The Social Organization and the
Secret Societies of the Kwakiutl Indians" (1895), Report of United States National
Museum, p. 315; Malinowskl, The Family among the Australian Aborigines (1915);
Lowie, Primitive Society (1920); Golden weiser, History, Psychology and Culture 09SS)»
Part III (Totemism); Malinowski, Crime and Custom in Savage Society (1986); Hogbin,
Law and Order in Polynesia (1934).

In political science: W. J. Shephard, "Democracy in Transition" (1935), *9 American
Political Science Review i; cf. H, J. Laski, Grammar of Politics (and edition, 1989);
W. Y. Elliott, The Pragmatic Revolt in Politics (1928)*

4. Cf. F. S. Cohen, "Transcendental Nonsense and the Functional Approach" [above,
P- 33]-

FUNCTIONAL JURISPRUDENCE

conduct of human beings who are affected by law. In the former field, the
outcome of the functional approach is generally designated as "realistic
jurisprudence." In the latter field, the outcome of the functional ap-
proach is usually called "sociological jurisprudence." There is, however,
no well-recognized definition of these schools of thought,5 and I think
it is fair to say that "realistic" and "sociological" jurisprudence are in
part complementary and in part overlapping, but in no way antithetical,
and that both spring from a common skeptical, scientific, anti-super-
natural, functional outlook.

LAW AS A FUNCTION OF JUDICIAL DECISIONS

Perhaps one reason why jurisprudence has been so slow in discovering
the social content of legal rules and legal concepts is that jural facts,
unlike the facts of physics or biology, generally purport to be self-
explanatory. It has generally been considered an impertinence verging
on political blasphemy to question the adequacy of these explanations.
The statute carries on its face its intended effects; the decision of a court,
if important, is generally accompanied by a rationale in the form of a
judicial opinion; most of the acts of subordinate legal officials are sur-
rounded by explanatory words and ritual. To take these explanations
at their face value is at once a mark of political decorum and a release
from arduous tasks of research.

The trends of modern jurisprudence that we call functional are
inaugurated by skeptics who refuse to take these explanations at their
face value and demand hard coin of social fact in place of paper
legalities. Some of these skeptics have suggested that the words of a
statute often have only the most superficial resemblance to the work-
ings of the statute. A good deal of statute law turns out under investiga-
tion to be without any force — law-in-books rather than law-in-action;
other parts of the statute law have been given new meanings in judicial,
administrative, and popular construction — meanings that could never
have been deduced from the words of the legislature. In either case,
study of the statutes fails to provide a realistic picture of functioning
law. Again, this skeptical spirit has been applied to the official dis-
courses in which judges set forth the reasons for their decisions. Judicial

5. There is a good deal of overlapping, for instance, in the program of sociological
jurisprudence offered by Dean Pound, and the program of realistic jurisprudence
outlined by Llewellyn. Cf. Pound, "Scope and Purpose of Sociological Jurisprudence"
(1912), 25 Harvard Law Review 489, 512-15; and Llewellyn, "Some Realism about
Realism — Responding to Dean Pound'* (1931), 44 Harvard Law Review 1222, 1236-55.

LOGIC, LAW, AND ETHICS

opinions have been viewed as no more and no less reliable than the
statements in which octogenarians, golf champions, or successful bank-
ers explain their achievements. In place of judicial introspection, or at
least as a corrective for its deficiencies, we are invited to examine un-
mentioned factors leading to a given decision. These factors may range
from weakness of intellect or digestive disturbances to political beliefs
or economic backgrounds.

Under this skeptical gaze, a good many of the revered rules and
principles of the law turn out to be pious frauds, contradicted by the
actual holdings in decided cases, others turn out to be so ambiguous
that they have no predictive or scientific value, and still others turn out
to be disguised tautologies.

The actual course of judicial decisions, conceived as a field of historical
events rather than as a branch of geometry, reveals a much larger degree
of uncertainty in the law than traditional jurisprudence has recognized.
One of the most learned of living judges confesses to

a mounting sense of wonder that with all our centuries of common
law development, with all our multitudinous courts, and still more
multitudinous decisions, there are so many questions, elementary in
the sense of being primary and basic, that remain unsettled even
now. . . . One wonders how one has attained maturity without
getting oneself in trouble when one has been so uncertain all along
of the things that one might do in affairs of primary concern. Take
such fundamental privileges or claims of privilege as these — the
privilege to employ force against another who threatens one with
bodily harm; the privilege to employ force to effect a recaption of
chattels taken from one's custody; the privilege to employ force to
effect an entry upon land. It is astonishing how obscure and con-
fused are the pronouncements upon these fundamental claims of
right.6

The extent of actual uncertainty in the body of the law is obscured
by the legal fiction that courts do not make law but merely declare the
law that already exists.7 It is further obscured by linguistic conventions
that give the appearance of certainty where there is no certainty. "Law-
yers use what the layman describes as 'weasel words/ so-called 'safety-

6. Cardozo, Paradoxes of Legal Science (1927), pp. 76-77,

7, "The fiction that judges do not legislate has long since been abandoned by all
who care for a conscious and realistic jurisprudence." H, J, Laski, "Judicial Review
of Social Policy in England, A Study of Roberts v. Hopwood et al" (1926), 59 Harvard
Law Review 83*. Cf. M. R. Cohen, *The Process of Judicial Legislation/' supra, note t,

FUNCTIONAL JURISPRUDENCE

valve concepts/ such as 'prudent/ 'negligence/ 'freedom of contract/
'good faith/ 'ought to know/ 'due care/ 'due process/— terms with the
vaguest meaning— as if these vague words had a precise and clear defi-
nition; they thereby create an appearance of continuity, uniformity and
defmiteness which does not in fact exist."8 Again the appearance of
certainty is served by the verbal convention that established principles
of law are never "refuted" but only "distinguished." Legal principles
have a habit of running in pairs, a plaintiff principle and a defendant
principle.9 As in the domain of popular proverbs one appeals with
equanimity to the caution, "Look before you leap/' or to its opposite,
"He who hesitates is lost/' depending upon which course of action he
prefers, so in the law one generally has a choice between opposite
"principles." Writers of legal treatises have no compunction about setting
the two principles side by side, with only a "but" or "however" between
them for the sake of decency. But in the actual decision of cases the
choice between conflicting principles is likely to depend on unstated
considerations. Mr. Justice Holmes was one of the first to take judicial
notice of the inconclusiveness of legal principles.

The language of judicial decision is mainly the language of logic.
And the logical method and form flatter that longing for certainty
and for repose which is in every human mind. But certainty gen-
erally is illusion, and repose is not the destiny of man. Behind
the logical form lies a judgment as to the relative worth and im-
portance of competing legislative grounds, often an inarticulate and
unconscious judgment, it is true, and yet the very root and nerve
of the whole proceeding. You can give any conclusion a logical form.
You always can imply a condition in a contract. But why do you
imply it? It is because of some belief as to the practice of the
community, or of a class, or because of some opinion as to policy,
or, in short, because of some attitude of yours upon a matter not
capable of exact quantitative measurement, and therefore not capable
of founding exact logical conclusions. . . .

I think that the judges themselves have failed adequately to rec-
ognize their duty of weighing considerations of social advantage. The
duty is inevitable, and the result of the often proclaimed judicial
aversion to deal with such considerations is simply to leave the very
ground and foundation o£ judgments inarticulate, and often un-

8. Jerome Frank, Law and the Modern Mind (1930), p. 27.

9. Ynteraa, "The Hornbook Method and the Conflict of Laws" (1928), 37 Vale Law
Journal 468.

LOGIC, LAW, AND ETHICS

conscious, as I have said. When socialism first began to be talked
about, the comfortable classes of the community were a good deal
frightened. I suspect that this fear has influenced judicial action both
here and in England, yet it is certain that it is not a conscious factor
in the decisions to which I refer. ... I cannot but believe that if
the training of lawyers led them habitually to consider more def-
initely and explicitly the social advantage on which the rule they
lay down must be justified, they sometimes would hesitate where
now they are confident, and see that they were taking sides upon
debatable and often burning questions.10

To recognize this element of choice in the judicial process is to make
the study of social factors that determine the course of judicial decision
an essential part of the lawyer's outfitting if he is to predict with accuracy
the probable legal course of his client's plans. To quote from Mr. Justice
Cardozo's revealing study of the judicial process: "The spirit of the age,
as it is revealed to each of us, is too often only the spirit of the group in
which the accidents of birth or education or occupation or fellowship
have given us a place. No effort or revolution of the mind will overthrow
utterly and at all times the empires of these subconscious loyalties." u

Professor Laski has recently observed, in somewhat the same vein:

... no true science of law is possible unless its assumptions arc
built on a philosophy of history that enables us to predict the large
consequences of the system in which we are involved.

. , . Once we realize that the legal relations of society are, broadly
speaking, the expressions of class relations, once we recognize in the
state supreme coercive power held at the disposal of those who own
the instruments of production, the processes of law begin to clarify
themselves in a fundamental way.12

Undoubtedly Professor Laski and Justice Cardozo would differ pro-
foundly in analyzing the social determinants of law. What is significant is
that, despite these differences of social viewpoint, there is agreement on
the direction of research required if one would understand the course of
judicial decisions, Such understanding cannot be achieved within the
confines of legal science traditionally conceived.

Fifty years ago Langdell wrote, "Law is a science, and all the available
materials of that science are contained in printed books/' 1S Today we

10. Holmes, "The Path of the Law/' supra, note i, pp, 181, 184.
u. Cardozo, The Nature of the Judicial Process (1921)* PP- *74~75-

12. Harold J. Laski, Book Review (1936), 46 Yale Law Journal g§t» 952,

13. 3 Law Quarterly Review 123-24.

FUNCTIONAL JURISPRUDENCE

are disposed to recognize that judges are human beings, and that not
all the forces which motivate judicial behavior are words in printed
books. There is, of course, wide difference of opinion as to the compara-
tive importance of different fields of knowledge in helping us to predict
judicial behavior. Some are searching in fields of psychology and psycho-
analysis,14 without, I think, reaching any very significant results. Other
students of the law have made illuminating studies of the social, eco-
nomic, and political backgrounds of judges and decisions.15 Equally use-
ful studies are being made in the field of social institutional pressures
that influence legislation.16

All this is of significance not merely to the legal philosopher but to
the practicing lawyer. The client who wants to know whether to organize
a partnership or a corporation or whether to include a particular sort of
renewal clause in his lease is not particularly interested in the present
state of the law. He wants to know how the courts are likely to deal with
the transaction some years hence. The solicitor who advises him must
know more than words in law books if he is to give intelligent advice.
There is need even in these narrow questions for social vision, knowl-
edge, judgment, and the ability to weigh available evidence. Much more
obvious is the need when the legal question presented involves the de-
velopment of an important economic institution, social organization, or
political instrumentality. The functional conception of legal science thus
dictates a new vision of the scope of legal education. The student of law
must be familiar not only with statutes and cases but with the social
realities on which the statutes and cases impinge, and with the social

14. Frank, Law and the Modern Mind (1930), c. 12-13; T. Schroeder, "The Psy-
chological Study of Judicial Opinions" (1918), 6 California Law Review 89; H. D.
Lasswell, "Self -Analysis and Judicial Thinking" (1930), 40 International Journal of
Ethics 354; Hutcheson, "The Judgment Intuitive: The Function of the 'Hunch' in
Judicial Decisions" (1929), 14 Cornell Law Quarterly 274; Hutcheson, "Lawyer's Law
and the Little, Small Dice" (1932), 7 Tulane Law Review i.

15. See: Jerome Hall, Theft, Law and Society (1935), Appendix; Brooks Adams,
"Law Under Inequality"; "Monopoly" in Centralization and the Law (1906), Lecture
2; Boudin, Government by Judiciary (1932); Gustavus Myers, History of the Supreme
Court (1912); W. Hamilton, "The Ancient Doctrine Caveat Emptor" (1932), 40 Yale
Law Journal 1133; Nelles, "The First American Labor Case" (1931), 41 Yale Law
Journal 165; Max Lerner, "The Supreme Court and American Capitalism" (1933),
42 Yale Law Journal 668; C. G. Haines, "General Observations on the Effects of
Personal, Political and Economic Influence in the Decisions of Judges" (1922), 17
Illinois Law Review 96; R. A. Brown, "Police Power — Legislation for Health and
Personal Safety" (1929), 42 Harvard Law Review 866; M. Finkelstein, "Judicial Self-
Limitation" (1924), 57 Harvard Law Review 338.

16. See, for example, Childs, Labor and Capital in National Politics (1930).

LOGIC, LAW, AND ETHICS

realities that, in turn, impinge on courts and legislatures as determinants
in the development of the law.17 It is forty years, now, since Mr. Justice
Holmes wrote: "For the rational study of the law the black letter man
may be the man of the present, but the man of the future is the man
of statistics and the master of economics." 18

Pervading the realistic analysis of legal rules and concepts there is
implicit a definition of law in terms of empirical realities. This definition
has been most trenchantly formulated by Mr. Justice Holmes.*

Alternative functional definitions of law have been offered,19 but all
these definitions attempt to anchor the concept of law on a solid bottom
of empirical fact. Perhaps the most important thing about these defini-
tions is that they get away from the Blackstonian confusion that vitiates
so much of traditional jurisprudence.-}"

LAW AS A DETERMINANT OF HUMAN BEHAVIOR

It is ancient wisdom that the human significance of law is found in the
impact of law upon human behavior. Scire leges non hoc est verba earum
tenere, sed vim et potestatem^ Yet actual investigation of the effects
of law upon conduct still has an air of novelty about it. One of the great
protagonists of sociological jurisprudence, Professor Kantorowicz, puts
the case in striking fashion. When the lawyer or law student reads a code
of laws (or for that matter a legal treatise, a statute, or a collection of
decisions), "Let him ask himself with respect to each statement . . .
what harms would social life undergo if instead of this statement the
opposite were enacted. And then let him turn to all textbooks, com-
mentaries, monographs, and reports of decisions and see how many ques-
tions of this sort he will find answered and how many he will find even
put." 21
The problem of the effects of law upon human beings, which is central

17. See Leon Keyserling, "Social Objectives in Legal Education" (1933)' 3S Columbia
Law Review 437.

1 8. "The Path of the Law," supra, note i, 187.

19. See Cardozo, The Growth of the Law (igs4)> pp. 44, 52; C. J, Keyser, "On the
Study of Legal Science" (1929), 38 Yalt Law Journal 413.

20. Dig. 1.3.17 (Celsus),

a i. Rechtswissensehaft und Sociologu (1911), 8*

* [Ed. note: Justice Holmes* definition is quoted above, in "Transcendental Non-
sense and the Functional Approach/* p. 61.]

f [Ed. note: Several paragraphs have been omitted here since they repeat the argu-
ment developed in "Transcendental Nonsense and the Functional Approach/' pp,

FUNCTIONAL JURISPRUDENCE

to legal science, is a problem which classical jurists of many schools have
found it convenient to ignore. Ignoring this problem has been particularly
easy in view of the hallowed legal conventions that everybody is pre-
sumed to know the law and that prudent men, the majority of mankind
no doubt, obey the law. In that kind of world, all one needs to do in
order to know the effects of a given rule is to read the rule and to
appreciate its purpose.

Unfortunately, in the real world, most of us are vastly ignorant of the
law, and are continually violating or disregarding the law. The question,
then, of how much actual observance is given to any legal rule is an
empirical question that cannot be answered on a priori grounds.

Again one turns to Professor Kantorowicz for a striking portrayal of the
disdain of facts by traditional legal theory:

This fiction (that every one knows the whole law of a state) con-
tradicts the facts in the grossest manner. The truth is that nobody
knows the whole law in its unsurveyable compass, that a few people
know a portion of it, that most know nothing of it. So true is this
that if a private citizen has acquired a thorough knowledge of the
law of the state he will usually belong to a class of shady gentlemen.
The usurer, the criminal apprentice, the yellow journalist, the fraud-
ulent promoter know the rules which interest them accurately
enough; the wholesale merchant, the artist, the statesman, the hus-
band have only a sporadic acquaintance with even the paragraphs
of the sales, copyright, public, international, or family law, without
being disturbed in their activities by this ignorance. The traveller in
a foreign country makes himself familiar with the language, the his-
tory, the art, the customs of the people — not even in a dream does it
occur to any one to so much as open its statute books.22

It is certain that law does not secure obedience except in so far as it is
known. Thus an important problem in determining the human signif-
icance of any rule or law is the problem of discovering the extent to
which people theoretically affected by the rule are actually aware of it.
From the point of view of the legislator, the problem takes a special form:
In order to make this or that legislation effective, how can knowledge of
it be conveyed to those who are concerned, including those who are ex-
pected to enforce it? The influence of newspapers, public trials, law
treatises, and other instruments of education or propaganda, upon pop-
ular legal beliefs presents a fascinating problem for the sociological jurist,

22, Kantorowicz (sub pseud, Gnaeus Flavius), Der Kampf um die Rechtswissenschaft
(1906), pp. iS-H-

LOGIC, LAW, AND ETHICS

and the results to be achieved in such investigations may prove of con-
siderable practical value.

The functional approach suggests that instead of tracing the effects of
a decision along celestial lines of logical force we may look rather to
the actual process of learning, or understanding and misunderstanding,
which governs the interpretation that will be put upon a statute or a
decision by laymen, by administrative officers, and even by successive
judges.

The existence of this empirical problem has been somewhat obscured
by the traditional notion that legal rules may be deduced from decisions
and that these rules "bind" future judges. As a matter of fact, no number
of decisions can logically provide a rule of law, for the simple reason
that a universal proposition can never be validly inferred from any
number of particular propositions. A decision is a particular proposition,
and a rule of law is a universal proposition.

The search for a logical formula that will determine precisely what
rule each decision implies 23 is a wild goose chase starting from a logical
confusion. The functional approach substitutes a wholly empirical ques-
tion: "What influence is a legal decision likely to have on future cases?"
This is not always a simple question to answer, as competing counsel in
most cases will recognize. There is a vocabulary and a technique for
restricting decisions to the particular facts of the case, that is to say for
distinguishing any new case and thus destroying the precedent value of
the old case. There is another vocabulary and another technique for
drawing wider and wider morals from a decision, and applying these
morals to cases more and more distantly removed. In selecting and com-
promising between these techniques, courts make choices which cannot
be blamed on logic. To describe these choices as they occur is the objec-
tive of a functional theory of legal precedents.24

The problem of interpreting past decisions is not a problem restricted
to the field of judicial action. A similar problem exists in the field of
public administration and in the field of popular legal opinion. Here
again there is need of patient study to show how people actually do
interpret and misinterpret laws and cases. The results of such study may
make it easier for judges and legislators alike to foresee the consequences
of action.

The study of mental reactions to rules and decisions, while essential,

$3. For examples of this search see Goodhart, "Determining the Ratio Deddendi
of a Case" (1930), 40 Yale Law Journal 161.

24. K. N. Llewellyn, The Bramble Bush (1930), pp. 47, 6i~66. OHphant, "A Return
to Stare Decisis" (*0s8)» 6 American Law School Review 3*5, 317, «i8, F, S, Cohen,
Ethical Systems and Legal Ideals (1933), pp. 33-37.

FUNCTIONAL JURISPRUDENCE

is not sufficient to determine their full effects. Beyond this task is the
task of determining how the incentives to obedience and disobedience
will mold reactions to law.

The scope of this latter task is underestimated by those who deny that
law consists of commands and point out that most legal propositions, at
least outside the field of criminal law, are declaratory rather than impera-
tive. What this criticism overlooks is that legal propositions which are
declaratory in form owe their legal force to threats of state action.

An order does not cease to be a command because it contains an
explanation of what it is that is commanded. Nor is a law permitting
a man to do something at his option, e.g. to dispose of his property
by testament, any less a part of the system of imperatives, in this case
of what we call the law of property. It certainly is an imperative to
the children or other heirs, who when the will is properly made,
must yield certain goods to legatees or devisees.25

The human significance of any rule of law thus depends upon the
extent to which it secures obedience. This, in turn, will depend upon
the strength of the organized desire for which the rule provides an en-
forcing instrument, as compared with the strength of the organized desire
which the rule is intended to frustrate. The failure to recognize this per-
sistent struggle that underlies all law enforcement is written large in the
history of social reform legislation. Again and again idealists have suc-
ceeded in writing their hopes on the statute books, only to discover in
dismay that laws are not self-executing. Out of the past century's experi-
ence with social reform legislation certain elementary facts are beginning
to emerge — for instance, that a law designed to help the weaker of two
parties to a bargain will be useless if it is possible to "contract out," and
that legislation designed to protect an oppressed class will not be ef-
fectively enforced unless it sets up some independent agency capable of
representing the interests of that class in securing enforcement of the
legislation.26

Every legal problem, viewed functionally, involves a conflict of inter-
ests. The stability of any solution will depend, at least in part, upon a
correct appraisal of the desires that will be effectuated or frustrated by
the solution.27

The problem of weighing incentives to obedience and disobedience

25. M. R. Cohen, Law and the Social Order (1933), p. 206.

26. See W. F, Dodd, Administration of Workmen's Compensation (1936), pp. 16-26,
70-99. Cf. E. A. Parry, The Law and the Poor (1914).

27. See, for a significant application of this approach to the law of larceny, J. Hall,
Theft, Law and Society (1935), chap. 6.

LOGIC, LAW, AND ETHICS

leads finally to the problem of weighing social forces. What the law
ought to accomplish in any given situation cannot be determined with-
out determining what the law can accomplish. This latter question leads
us inevitably to seek some measurement of the organized force that can
be brought to bear on any legal issue. The force of law depends partly,
to be sure, on the death-dealing equipment of the state; it depends also
upon the essential human services which the state controls; it depends
at the same time upon the organizational loyalties without which armies,
police forces, and all social institutions disintegrate. The effectiveness of
the opposition to law, at any point in the legal order, will likewise be
proportionate to the physical, economic, and emotional power which can
be mustered to oppose a given objective affirmed by the law. Recent his-
tory in Italy, Germany, Austria, and Spain, reveals the tenuousness of
traditional analyses of democracy in terms of constitutional rights and
procedures. From a realistic point of view, democracy is gone when the
theoretical power of the majority to govern ceases to correspond to an
actual power to compel obedience. From this point of view the question
of whether a democracy can tolerate vast concentrations of financial
power assumes critical significance. In constitutional as well as in private
law, the stuff of which living law is made is not concepts in logical ar-
rangement but conflicting interests diversely organized and pitted against
each other in an ever shifting battle line. A realistic appraisal of the
human meaning of any legal rule involves us in a measurement of human
desires and human powers in every domain of life.

The question of the proper scope of law has been argued back and
forth for a good many centuries, and nearly all of the argument has been
in a priori terms. From the functional standpoint, the problem takes a
form in which empirical evidence becomes relevant. The central question
is that of the effectiveness of various possible legal rules and arrange-
ments. From this standpoint, if modern history shows a progress of the
law in social control it is significant to ask whether this progress is not
primarily ascribable to an increase in the realm of jurisdiction dominated
by the state through its increased physical force rather than to any prog-
ress in legal wisdom or the moral qualities of humanity. In the modern
centralized nation the monopoly of internal power by the sovereign,
based upon centralizing developments in the technology of industry, com-
munication, and warfare, has made it possible to exercise effective legal
control over many relationships that were once outside the realm of
effective control. If legal development has not made full use of new op-
portunities, this is partly due to the heritage of thinking from an age in
which the state could not undertake certain tasks of social control for

FUNCTIONAL JURISPRUDENCE

lack of power, and in which it accordingly became the accepted duty of
the moralist to prove that those things were not worth doing. A state
which cannot secure obedience from those who control its industry may
at least save face by issuing the unbreakable commandment, "Do as you
please.'1 28 Unfortunately, the fact tends to be viewed as an ideal. In
political theory, at least, conservatism may be defined as the idealization
of yesterday's misfortunes.

If the temporal variation of state power offers a useful key to the under-
standing of legal history, the varying degrees of state power in different
fields of human conduct offer an equally useful key to the understanding
of the law of a given epoch. The law is one among many "control" in-
stitutions. The direction of its powers is largely determined by a process
of competition with organized religion, organized education, the family,
professional and mercantile agencies of control, and various other social
institutions, each with its own "inner order" and its own sanctions.29
The disruption of any of these agencies throws new tasks upon the law;
their development relieves the legal order of old responsibilities.

In this competition with other organizations of social force, the law
realizes the limitations of its machinery. Operating through courts, it is
required by dictates of social economy to concentrate its attention upon
facts readily verifiable. Laws against adultery are notoriously unenforce-
able. The fact that land cannot be concealed gives point to the peculiarly
rich development of legal control over real property. The public events
of birth, marriage, and death furnish stable fulcrums for legal leverage.
The organization of men into permanent groups offers new pressure
points for the activity of the law.30

To describe law-in-action is to describe the inter-relationships between
judicial decisions and all the other events of the social scene. The mean-
ing of law depends not only upon the factors already noted, which deter-
mine how far it will be observed, but on all the social facts that give law-
observance and law-breaking their human significance. In writing the life-
history of a legal rule one does not reach the end of the story when the
rule is obeyed or disobeyed. There remains to be told the meaning of
obedience or disobedience, in terms of social institutions and customs, in
terms of the material things over which law gives control, in terms of
human habits, modes of thought, fears, hopes, pleasures, and pains.31

28. Cf. F. S. Cohen, "The Socialization of Morality" [below, pp. 337, 340],

29. See Ehrllch, Fundamental Principles of the Sociology of Law, trans, by Moll
(1936), chaps. 2-3.

go, F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 269, 270.
31. Ibid., pp. 271-85.

LOGIC, LAW, AND ETHICS

The problems raised in the search for the human meaning of legal
rules, decisions, concepts, and institutions are problems to which the
literature of functional jurisprudence gives, perhaps, only faltering and
partial answers. To have lifted these problems to the level of conscious
formulation is itself an achievement. What remains is for the future.

A functional jurisprudence, in facing this task of tracing the human
significance of law, will draw upon the results of scientific study in many
related fields. Already first attempts have been made to trace the human
consequences of specific rules and decisions.32 There is a growing litera-
ture that analyzes, from the legal standpoint, the fields of conduct to
which law is applied.33 More important, perhaps, than any of these
published studies is the incorporation of social investigation into the
process of law administration. The growing practice of including eco-
nomic materials in legal briefs, the increased use of economists and statisti-
cians by administrative bodies, and of psychiatrists and social workers
by courts, the growing utilization of social research in legislative hearings
and investigations, all testify to the contemporary significance of the func-
tional approach and its promise for the future.

FUNCTION AND VALUE

The normative use of definitions is one of the most prevalent sources of
confusion in legal criticism.

Those who define law as an outpouring of the Volksgeist are prone to
argue that law which shows their theory to be false, e.g. code law, is
undesirable. Those who define law as the will of the sovereign are apt to
conclude that judge-made rules which ignore or defy the will of the
sovereign are bad law. Those who define law as a body of authoritative
principles recognized by the courts are likely to condemn as evil any
course of judicial decisions that violates these assumed principles,84

32. See, for instance McCracken, Strike Injunctions in the New South (1931).

33. In addition to the vast modern literature on criminology, there is a growing
corpus of legally oriented material on such subjects as corporate practice, banking
practice, the organization and functioning of trade unions, the disposition of de-
cedents' estates, industrial accidents, automobile accidents, contracts of employment, and
the psychology of the witness,

34. Bertrand Russell points to a similar fallacy in the realm of philosophy;
"The philosopher first invents a false theory as to the nature of things, and then

deduces that wicked actions are those which show that his theory is false. To begin
with the traditional Christian: he argues that, since everything always obeys the will
of God, wickedness consists in disobedience to the will of God. We then come on to
the Hegelian, who argues that the universe consists of parts which harmonise in a

FUNCTIONAL JURISPRUDENCE

It is one of the serious dangers of the functional approach that those
who invoke it for the purpose of description may without further thought
utilize it as a criterion of value. It is important for the jurist to remember
that when he has described the human significance of a rule he has not
thereby justified its existence. The task of valuation remains to be faced.

Caution against normative use of a functional definition of law is par-
ticularly pertinent because of the ambiguity of the word "function." When
one says, for instance, that it is the function of the judge to apply pre-
existing law to the facts of a case, one may mean that this is what a judge
ought to do or simply that this is what judges actually do. A statement
of the latter type is purely descriptive. A statement of the former type
assumes a standard of values, and is, in effect, an ethical judgment.

It is to be emphasized that functional analysis of a legal rule or decision
is purely a descriptive process. On the other hand, an intelligent value
judgment upon any legal rule or decision presupposes such descriptive
functional analysis, but also involves an ethical premise.

It was Bentham's great and enduring contribution to legal criticism to
insist that the value of a legal rule depends upon its human consequences.
In the field of legal criticism, or normative jurisprudence, functionalism
is simply a development of utilitarianism. It is a development, however,
which seeks to overcome certain weaknesses in the philosophy and method
of Bentham and his immediate successors.

In the first place, Bentham failed to distinguish between his general
theory of value, i.e. that the value of any act depends upon its con-
sequences, and his theory of the good, i.e. that pleasure or happiness is
the only good. The latter theory is one that many reasonable people re-
ject, and although I happen to believe that all the objections thus far
levelled against Bentham's hedonism are inconclusive,35 I should agree
that one may adopt alternative standards of ultimate value without
getting into logical self-contradiction.

But no matter what other standards of value one may adopt, the es-
sential basis of utilitarianism remains.86

Bentham's doctrine that the value of any legal rule depends upon its

perfect organism, and therefore wickedness consists of behaviour which diminishes the
harmony — though it is difficult to see how such behaviour is possible, since complete
harmony is metaphysically necessary. . . . These examples have, I hope, made it plain
that a metaphysic can never have ethical consequences except in virtue of its false-
hood; if it were true, the acts which it defines as sin would be impossible." Sceptical
Essays (1928), ch. 7 ("Behaviourism and Values"), p. 91.

35. F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 185-220.

36. This is recognized by so vigorous a critic of hedonism as G. E. Moore. Ethics
(1912), chaps. 1-3; Principia Ethica (1903), chaps. 1-2.

LOGIC, LAW, AND ETHICS

consequences was met with the philosophical challenge: Why should we
assume that the value of anything depends upon its consequences? Func-
tionalism exposes the emptiness of this challenge, by showing that the
distinction between law and its consequences is purely arbitrary. The
meaning of a legal rule is not action commanded but action caused. One
cannot evaluate a legal rule or institution intelligently without knowing
the action caused which constitutes the human meaning of the rule or
institution. The challenge to Bentham's general theory of value turns
out to be only a verbal confusion.

A further weakness in Bentham's utilitarianism springs from the gen-
eral state of the social sciences at the time Bentham wrote. While insisting
that the value of law depends upon the effect of law on human conduct,
Bentham himself was unable to utilize any scientific study of such effects,
for the simple reason that no scientific study of such effects had ever been
made. The bare materials for such a study — judicial statistics, general
social statistics, and social case studies — were lacking. Bentham therefore
had to rely entirely upon common observation in making his own cal-
culations of the effects of various legal rules and institutions. Today
jurisprudence can draw upon a wealth of material, scientifically collected
and organized, in tracing the effects of law in human society.

In the field of legal criticism the functional method may thus be con-
ceived as essentially a reorientation of utilitarianism to a wider philo-
sophical perspective and to a broader horizon of relevant knowledge in
the fields of psychology, economics, criminology, and general sociology.

The Relativity of Philosophical Systems
and the Method of Systematic Relativism

I. THE FABLE OF THE HOTTENTOT HUNTERS
AND THE SYSTEMATIC RELATIVIST

Once upon a time, two Hottentot hunters came upon a herd of elephants,
and each hunter proceeded to systematize the situation by counting the
elephants. It so happened that one of the hunters counted from left to
right and the other hunter counted from right to left. Despite this im-
portant difference in starting point and in the direction of research, the
two hunters agreed that there were eleven elephants. But whereas one
hunter insisted that Elephant No. i was a large male with a bad temper
and offered many plausible arguments in support of this thesis, the other
hunter insisted that Elephant No. i was a small and rather timid young
female, and offered equally plausibl'e arguments in support of that thesis.
From argument the two hunters descended to epithet, and would finally
have come to blows but for the fact that a systematic relativist happened
along who offered to mediate the quarrel.

When he had listened to both sides, the systematic relativist said: "It
is clear that the opposite characteristics which the two of you attribute to
Elephant No. i cannot, in the nature of elephants, co-exist. However, the
world is a manifold of systems, and the two of you are talking in two
different systems. Elephant No. i in one system is identical with Elephant
No. 1 1 in the other system. Speaking generally if n represents the ordinal
number of any elephant in one system and nf represents the ordinal
number of the same elephant in the other system, your formula of transla-
tion in order to understand each other is: n equals 12 — ra'. So you see,
gentlemen, when you ascribe incompatible characteristics to Elephant
No. i, you are not contradicting each other at all, and there is no dispute
between you for me to settle/'

This was very confusing to the two Hottentot hunters, so they ate the

Published in The Journal of Philosophy, 1939.

LOGIC, LAW, AND ETHICS

systematic relativist and called in a nearby witch-doctor to settle their
dispute. The witch-doctor, after donning his judicial robes and examin-
ing the entrails of a bull, declared: "Elephants should always be counted
from left to right. This follows from the nature of the universe, and also
it follows from the nature of elephants. In accordance with this simple
and salutary rule, we find that Elephant No. i is, in reality, a large male
with a bad temper. The hunter who has denied this obvious truth has
fallen into error by failing to observe this simple and salutary rule. In
fact he has been thinking backwards and standing the universe on its
head. For these errors he should make due compensation."

The two hunters were well satisfied with this common-sense decision,
which they faithfully observed, and lived happily for ever after.

II. THE THESIS OF SYSTEMATIC RELATIVISM

The thesis which I wish to defend is that the systematic relativist was
right in thinking that there was no inconsistency between the viewpoints
of the two Hottentot hunters, that each was right in what he was affirm-
ing and each was wrong in thinking that he was contradicting his compan-
ion, and that the two Hottentot hunters should have eaten the witch-
doctor instead of the systematic relativist. Put more abstractly, statements
which, if made within the same system, would be incompatible proposi-
tions, may be both true in two different but compatible systems, and may
even be identical within two such systems. The thesis may be applied, I
think, to the doctrines of philosophy as well as to the practical beliefs of
uncivili2ed men.

III. THE RELATIVITY OF PHILOSOPHIC SYSTEMS

The traditional controversies of philosophy, monism versus pluralism,
rationalism versus empiricism, realism versus subjective idealism, ideal-
ism versus materialism, and all the other squabbling couples of philos-
ophy, are a perennial source of discouragement to the student of philos-
ophy. How does it happen that after more than two thousand years of
hard thinking we are no nearer the solution of these issues of ontology
and epistemology than were the thinkers of ancient Greece? Is progress
in philosophy an illusion? Are all philosophers somehow off on the wrong
track? A good many currents of contemporary philosophizing are funda-
mentally attempts to answer these questions. Pragmatism would deny
the category of truth or falsity to philosophical doctrines and issues that
do not have consequences for conduct. Logical positivism assigns all

RELATIVITY OF PHILOSOPHICAL SYSTEMS

metaphysical doctrines and disputes to the realm of nonsense. There is,
I think, an element of truth in these doctrines, as well as in many other
contemporary doctrines that seek to characterize traditional philosophical
disputes as unreal or verbal. At the same time none of us really believes
that all of the founders of the great philosophical systems were merely
wasting their time playing with words that are devoid of significance. For
the fact is unescapable that all of the natural and social sciences, all of
the systems of law and ethics that we know, have taken their growth from
these supposedly insignificant philosophical doctrines. If we are to be
faithful to history, we must explain not only why philosophers do not
agree but also why, even in their disagreements, philosophers have il-
lumined the world.

Both of these requirements which history imposes are met, I think, by
the thesis or hypothesis of systematic relativism. Applied to the field of
systematic philosophy, this viewpoint suggests that the differences be-
tween philosophic systems are not differences to which the categories of
truth and falsity are relevant, that we are dealing here rather with dif-
ferences of logical structure or perspective, and that philosophies which
have been regarded as contradictory may turn out on analysis to be
compatible — or even identical — in content, though differing as to form.

We may perhaps find some light on the inter-relations of philosophic
systems if we consider the field in which rational system-making has had
its longest career, that is, the field of geometry. Euclid himself used a
great many terms for which no rigorous definitions were offered.1 The
euclidean geometry has been restated in more adequate form by Hilbert,
who uses only five undefined terms, point, straight line, plane, between,
congruent? The mathematician Veblen has succeeded in reducing the
number of undefined terms in euqjidean geometry to two, namely, point
and order* In Veblen's system of euclidean geometry, lines, angles, cir-
cles, and all the other elements of euclidean geometry are logical con-
structs of point and order. The mathematician Huntington has formu-
lated a system of euclidean geometry in which the only geometric elements
which are undefined are sphere and inclusion*

Suppose now that certain bad manners that obtain among philosophers
were taken over by geometricians. Each of these system-makers would

1. See T. L. Heath, Elements of Euclid (1908).

2. D. Hilbert, Foundations of Geometry, trans, by Townsend (1902), p. 3.

3. O. Veblen, "A System of Axioms for Geometry," in Transactions of the American
Mathematical Society, 5 (1904), 343~84-

4. Huntington, "A Set of Postulates for Abstract Geometry/' in Mathematische An-

nalen, 75 (i9i«~*9*3)» 5**-59-

LOGIC, LAW, AND ETHICS

feel constrained to assert that the geometrical world in reality consists
of the basic concepts which are the starting points of his system. Each
system-maker would show that the terms used as starting points by other
system-makers are not in reality basic, and can be analyzed and explained
in terms of his own basic concepts. Our bad-mannered geometrician might
go on to argue that each rival system puts the cart before the horse, or
stands the world on its head, or runs into a vicious circle, because it
assumes as postulates propositions which presuppose the very theorems
they are designed to prove, and which, in his own system, are derived and
deduced from those theorems. From all of which our bad-mannered
geometrician would conclude that the crisis in contemporary geometry is
the result of not looking at first principles Hrst and thus failing to see
that in reality the world of space consists of points and order or of spheres
and inclusion or some other sufficient set of geometric elements.

In fact, however, we find that geometricians who have elaborated dif-
ferent systems of euclidean geometry are perfectly willing to recognize
the logical equivalence of these systems. Formulae of translation have
been worked out which permit any proposition in one of these systems
to be equated with some proposition in any of the other equivalent
systems.5

Can the same principle of logical tolerance be applied to the diversity
of philosophic systems?

I believe that this question is to be answered in the affirmative. Let me
say at the outset, however, that I cannot offer a rigorous proof of this
thesis. Such a proof would have to take the form of a series of translation
formulae demonstrating that for every proposition in System A there is
an equivalent proposition in System B. Unfortunately the present state
of development of philosophic system-building does not permit rigorous
proof of this character. Indeed I know of no philosophic system, not even
excepting the systems of Spinoza, Descartes, or Wittgenstein, in which a
clear formulation of postulates and theorems has been achieved. Never-
theless I think it possible to offer some argument in support of the thesis
that apparently conflicting philosophies may turn out on analysis to be
compatible or even equivalent in content.

From the standpoint of the natural history of philosophies we may
trace the growth of philosophic systems along a line of development that
recurs again and again. In the beginning is the idea that gives a system

5. The situation in physics is comparable. Einstein defines the principle of special
relativity in these terms: "If K. is an inertial system, then every other system K/ which
moves uniformly and without rotation relatively to K is also an inertia! system; the
laws of nature are in accordance for all inertial systems" (The Meaning of fabttolty,

RELATIVITY OF PHILOSOPHICAL SYSTEMS

its distinctive character and importance. Applied to some current prob-
lem or to some field of experience the idea enlightens us. A broader
formulation or application of the idea is attempted. Facts appear that do
not conform to the scheme. For a time these facts may be ignored or bent
to fit the idea. But at some point this becomes impossible. The idea is
revised to take account of the new facts. As systems grow more inclusive
they tend to incorporate more and more qualifications. In this manner
divergent systems tend to approximate each other as they grow more in-
clusive. A philosophy of aesthetics, if it treats of the narrow realm of life
in studios, museums, and concert halls, may have no relevance to other
branches of philosophy, but if the field of aesthetics is viewed in broader
proportions, as Kant viewed it, covering the entire field of perceptual
experience, then a doctrine that covers that field must be vitally relevant
to the problems of epistemology, ethics, and cosmology. In the field of
physics the classical conflict between the Ptolemaic and the Copernican
systems vanishes into a non-existent ether if enough qualifications are
laid upon the earlier system. Political systems that appear to be dia-
metrically opposed may approximate identity as each qualifies its dis-
tinctive idea to take account of a common world of fact.

One may suggest a geometric analogy. Take any two distinct points in
a given plane. It is possible to draw about these points as centers two
mutually exclusive circles, enclosing no space in common. But increase
the diameter of the two circles, and, no matter how far apart, they will
eventually overlap. Increase the diameter further, and the common space
grows proportionately while the relative fraction of space covered by one
and not the other approaches zero. If finally we speak of the system of
all points which are included in circles having point A as a center, and
the system of all points included in circles having point B as a center, we
find that the two systems are no longer mutually exclusive, or even over-
lapping, but are in fact identical, both including all the points of the
given plane. So, I suggest, two philosophic systems may be so restricted
in scope and so far apart in origin as to have no content in common.
But increase the diameter or scope of the two systems and you have an
increasing common content. And what is perhaps more important, you
have no content in either system which cannot be reached and included
by an extension of the other system.

(/) Monism and Pluralism

Typical, perhaps, of the traditional antinomies of philosophy is the con-
flict of monism and pluralism. The statement that the world is one and
the statement that the world is many appear to be inconsistent doctrines.

LOGIC, LAW, AND ETHICS

If, however, we proceed to qualify the doctrine of monism, as all flesh-
and-blood monists have qualified it,6 by recognizing that the one world
has many parts, aspects, or modes, and if we likewise qualify the doctrine
of pluralism, as all flesh-and-blood pluralists have done,7 by recognizing
that the many things of the world do constitute a world, there is no
longer any logical inconsistency between the two doctrines, and systems
built about these different doctrines may be compatible and may even
turn out to be identical.

Thus Spinoza, generally regarded as the most monistic of the monists,
asserts: "Substance absolutely infinite is indivisible." [Ethics, sec. XIIL]
"Besides God no substance can be granted or conceived/' [Sec. XIV.]
But Spinoza, after thus affirming the principle of monism, is quick to add
this qualification: "From the necessity of the divine nature must follow
an infinite number of things in infinite ways — that is, all things which
can fall within the sphere of infinite intellect." [Sec. XVI.]

Thus the monist Spinoza admits the existence of an infinite number
of things. Is there any basic contradiction between such a monism and
the extreme pluralism of Leibniz? Leibniz is considered the most plural-
istic of the philosophical pluralists because he said: "These Monads are
the real atoms of nature and, in a word, the elements of things."
[Monadology, Sec. 3.] "The Monads have no windows, through which
anything could come in or go out." [Sec. 7.]

This extreme atomistic pluralism is soon qualified, for section 40 of
the Monadology states: "We may also hold that this supreme substance,
which is unique, universal and necessary, nothing outside of it being
independent of it, — this substance, which is a pure sequence of possible
being, must be illimitable and must contain as much reality as is possi-
ble." [Sec. 40.] "Whence it follows that God is absolutely perfect."
[Sec. 41.]

We may say, I suppose, that what is primary and basic for Spinoza
is secondary and qualifying for Leibniz, and vice versa. But logical
opposition between Leibnizian pluralism and Spinozistic monism is
possible only if the qualifications that appear in the sixteenth or fortieth
proposition of the system are ignored.

To recognize that a system of monism may be logically equivalent to
a system of pluralism is not to assert that the two systems are emotionally
identical or equivalent as stimuli to thought, and I do not mean to
dismiss as unimportant the differences involved in the two formulae.
Accepted as directives of rational inquiry, monism suggests that in any

6. See, e.g., Spinoza, Ethics, trans, by Elwes (1901), sees. XIII, XIV, XVI.

7. See, e.g., Leibniz, Monadology, trans, by Latta (1925), sees. 3, 4, 7, 40, 41.

100

RELATIVITY OF PHILOSOPHICAL SYSTEMS

situation we are to search for the underlying unities that hold together
elements apparently distinct or opposed. Pluralism suggests that we
look for the hidden lines of cleavage in terms of which apparent unities
may be resolved into their separate components. These divergent ap-
proaches will vary in comparative usefulness depending upon time and
place, temperament and purpose. It is important, I think, to recognize
these differences. It is also important, I think, to establish that the
differences between two such philosophical systems do not constitute a
true-false issue, that these differences are differences of structure, of
perspective, of emotional value, social symbolism or practical usefulness,
rather than differences of objective content, i.e., differences in what is
asserted.

(2) Realism and Subjective Idealism

Consider the puzzle of the epistemologists: "Do things exist apart from
our knowledge of them?" The question appears at first blush to permit
of a clear yesor-no division between realists and subjective idealists.
The latter begin bravely enough with "esse est percipi/' 8 but in the
end they agree that our ancestors lived before we thought of them,
that forces of which we are not aware exist and affect our lives, and
that no great physical transformation comes over a chair when we stop
looking at it.9 These facts the subjective idealist may explain in terms
of a divine being that perceives things when mortals do not perceive
them, or in terms of a distinction between a kind of existence which is
found when an object is being perceived and some other mode of being,
less honorable than true existence, which may be assigned to objects that
are not being perceived but would be perceived or would have been
perceived under certain conditions. Whatever the qualification adopted,
the subjective idealist, if he is not discouraged too soon, achieves a
system which is locable in the same world of experience in which the
realist locates his propositions.

Again one can point to differences of emotion or attitude. What is the
rule, the first thing to consider, or the Number One Elephant in one
philosophy, may be the exception, the last thing to contemplate, or
Elephant No. 11, in another philosophy. But every significant truth
that can be expressed in the system of subjective idealism can be ex-
pressed, in some other terms, in the system of realism. If the realist
says that chairs do not dissolve when they are not being perceived,

8. See Berkeley, Treatise Concerning the Principles of Human Knowledge, sec, 3.

9. Ibid., sec. 33.

101

LOGIC, LAW, AND ETHICS

the subjective idealist may say with equal force that divine perception
of chairs continues when our own human perceiving is interrupted.
The empirical meaning, the verifiable content, of the two propositions is
identical, however divergent the emotional overtones may be.

(5) Materialist and Idealist Interpretations of History

Consider, further, the supposed opposition between materialism and
idealism as philosophies of history. The historical materialist, in de-
fending his position, will show how each significant event in history has
been a product of economic developments, technology, material re-
sources, the natural history of earth, air, fire, and water.10 The idealist
counters by demonstrating that the role of material things in history
can always be explained in terms of human will, knowledge, belief.11
Things are not resources in themselves; they become resources as men
grow more resourceful. The economic order is itself an order of human
wants and sacrifices, satisfactions and acts of will. Technology is a form
of knowledge.

It seems to me that in this argument both parties are right in what
they affirm and both parties are wrong in believing that they have
"cornered" reality.

If both parties agree that there is a determinate relationship between
human ideas and environmental realities, it is immaterial that one says,
"The idea creates the environment/' and the other says, "The environ-
ment creates the idea/' Whatever can be said in one language can be
said in the other.12

I do not mean to suggest that materialists and idealists necessarily

10. Marx offered the following formulation of the thesis of materialism: "The
mode of production in material life determines the general character of the social,
political and spiritual processes of life. It is not the consciousness of men that deter-
mines their existence, but, on the contrary, their social existence determines their
consciousness" (Marx, Preface to A Contribution to the Critique of Political Economy,
trans, N. I. Stone [1904], p. u). Cf. also Bukharin, Historical Materialism (1935): "The
mental life of society is a function of the forces of production" (p. 61).

11. Thus Hegel asserts: "The history in question has constituted the rational neces-
sary course of the World-Spirit , . ." (Philosophy of History, trans, Sibree [1894], p, u),
And cf. Schopenhauer: "The world is my idea." (World as Will and ldeaf Bk. I, sec. i).
Recent and instructive examples of the idealistic approach In history are to be found
in Whitehead, Adventures of Ideas (1933), and Benedict, Patterns of Culture (1934),
particularly chapter IV*

12. Thus Engels himself specifically disclaims the idea that economic determinism
is the exclusive mode of historical explanation, (Letter of Engels to J. Bloch, Sept. ai»
1890, Marx and Engels, Correspondence: 1846-18^ [1934]* P« 475-)

RELATIVITY OF PHILOSOPHICAL SYSTEMS

agree with each other on all historical questions. After all, materialists
do not always agree among themselves, nor any more do idealists. What
I do suggest is that disagreements in appraising certain historical events
are not a necessary consequence of the fact that one formulates ex-
planations in terms of ideas and the other in terms of material things.
Every historical statement that is put forward by a materialist may be
accepted by an idealist, and vice versa. The formula of translation would
run roughly as follows: "Wherever the idealist ascribes importance,
imminence, or causal efficacy to an idea, the materialist is to ascribe
importance, imminence, or causal efficacy to the material things that
accompany the idea, and vice versa/'

(4) Other Philosophical Antinomies

The analysis thus applied to the supposed conflicts of monism versus
pluralism, subjective idealism versus realism, and historical materialism
versus idealism, can be applied with equal force, I think, to other
traditional conflicts of philosophy. The effect of this analysis would be
to demonstrate that what appear to be differences of opinion between
philosophers may turn out, on reflection, to be differences of perspective
or terminology.

The multiplication of philosophical systems, then, far from proving
the futility of philosophy, should rather be taken as a mark of progress.
When new types of music, painting, or architecture appear which violate
the rules embodied in earlier forms of art, we do not feel compelled
to reject the earlier art. Neither do the disagreements of artists demon-
strate that art does not progress. Philosophy, like art, progresses in so
far as it develops new rhythms and patterns of analysis and synthesis,
new perspectives upon reality, new organa fitted to the diversity of
human minds and interests.

IV. THE RELATIVITY OF SYSTEM

The method of analysis which we have called systematic relativism is
applicable, I believe, not only to systems of philosophy but to all
rational systems. It offers, I think, an organon for eliminating unreal
questions and false alternatives in the jungles of politics as well as in
the Elysian fields of philosophy. Broadly stated, the viewpoint of system-
atic relativism may be summed up in the thesis that every assertion
and every concept depends for its significance upon a systematic context
which is not uniquely determined by the assertion or concept itself.

103

LOGIC, LAW, AND ETHICS

Except within a given context an assertion is neither true nor false,
neither probable nor improbable, neither a priori nor derivative. Except
within a given context a concept is neither simple nor complex, neither
one nor many. Except within a single context one assertion cannot be
said either to support or to contradict another assertion.13 Order,
causality, proof, analysis, all have significance only within a system.
And many systems are possible.

This viewpoint compels a reformulation of significant categories. With
some trepidation I offer a few suggestions for this task of reformulation.

(/) The Relativity of Simplicity

Any ordered system begins with undefined terms which are used to
define other terms. For purposes of the system, the undefined terms are
ultimate simples, and all other concepts in the system can be explained,
analyzed, or defined in terms of these simples. Different systems, how-
ever, may locate simplicity in different parts of the universe. Within the
system of chemistry the physical elements are the base points of analysis,
but within the system of physics each of the elements is a composite
structure of forces. For economics a human want is an ultimate datum.
For psychology the want is something to be analyzed and explained. No
significant term is in itself simple or complex. Simplicity and complexity
are relative to context.

If this view is sound, the search for First Elements or Atomic Facts,
whether carried on by metaphysicians 14 or by antimetaphysicians,15 is,
like the search for First Elephants, doomed to failure, unless the seeker
recognizes that things are "first" or "atomic" only within the framework
of a given system and that no given system monopolizes reality.

Explanation or analysis involves direction. In any concrete situation

13. Cf. Carnap, Philosophy and Logical Syntax (1935), p. 78.

14. The classic argument for the existence of simple substances is that of Leibniz:
"And there must be simple substances, since there are compounds; for a compound Is
nothing but a collection or aggregatum of simple things" (Monadology, sec. 2). This
argument fails to exclude two logical possibilities (a) that there are no compounds
per se, but merely entities which are compounds relative to a given system, and which
may be simples relative to another system; and (b) that compounds are collections or
aggregates of other compounds and that there are no simples,

15. Wittgenstein echoes Leibniz: "2,021. Objects form the substance of the world.
Therefore they cannot be compound" (Tractatus Logico-Philosophicus [1922], p. 35).
And cf. Russell, Our Knowledge of the External World as a Field for Scientific Method
in Philosophy (1915), pp. 51-55.

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RELATIVITY OF PHILOSOPHICAL SYSTEMS

analysis can proceed along alternative lines.16 You can divide a piece
of pie into six equal portions, or into five equal portions, or into fat,
protein, and carbohydrates, or into carbon, hydrogen, and various other
physical elements. Does the pie now, in reality, consist of sixths, fifths,
chemical compounds, or physical elements? I think this question is
parallel to the question whether law is the creature of the state or the
state the creature of law, or the question whether the world in reality
consists of material things, ideas, substance and attributes, things in
relations, events, or atomic facts. The viewpoint of systematic relativism
suggests that the process of analysis, whether applied to the cosmos, the
nature of the state, or apple pie, can begin at different points, proceed
in different directions, use different instruments, and still produce equally
exhaustive results, with no crumbs left over.

(2) The Relativity of Proof

The same viewpoint that suggests that the direction of analysis and
the location of simplicity and complexity are functions of a contextual
system, also suggests that the direction of proof, generalization and par-
ticularization and the location of probability and the a priori are func-
tions of such a system.

In the field of deductive proof, systematic relativism asserts only what
I think we should all maintain, namely, that propositions or theorems
are proved with reference to assumptions or postulates, and that no
proof is conclusive if you reject the assumptions, which you can always
do, logically, though as a moral human being you may find certain
assumptions indispensable.

The viewpoint of relativism is equally applicable, I believe, to so-
called inductive proof.

To the absolute pluralist induction is a mystery,17 If the falling of
apple A is intrinsically and ineluctably a particular, distinct from the
falling of apple B, then no sum of these particulars can establish a
general proposition about the falling of apples or about gravity in
general.

16. Cf. Morris R. Cohen, in "Qualities, Relations, and Things" this Journal (1914)
pp. 617, 622. "The world of existence is thus a network of relations whose intersec-
tions are called terms. These termini may be complex or simple, but the simplicity is
always relative to the system in which they enter. . . . Even the mathematical point
is not absolutely simple. , . . In line geometry a point is a complex formed by the
intersection of two lines, and there is no reason for supposing that point geometry is
more fundamental than line geometry/'

17. Cf. Russell, op. cit.» pp. 221-23.

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LOGIC, LAW, AND ETHICS

But induction is not a mystery if one accepts the relativistic view that
what is particular is also general — in another context. From this stand-
point, the physicist does not have to traverse the infinite distance from
the particular to the universal, because he does not start with the
particular in the first place. He views only those aspects of the universe
which are common to apples and other material things, namely, such
universals as mass, velocity, acceleration, weight, shape, color. The
process of induction is not an addition of particulars but a subtraction
of universals. It is a process of eliminating irrelevant elements. The
hypothesis that color or shape or weight influences velocity may be
experimentally disproved, thus permitting a progressive abstraction in
what the physicist observes. From the standpoint of systematic relativism,
then, induction is the process of abstracting from experience the ele-
ments relevant to a given system and of eliminating elements which are
not relevant. The so-called assumption of the uniformity of nature is
nothing more than a recognition of the fact that particularizations which
may be very important to us as human beings may be quite irrelevant
to the cosmic process. The assumption that the future will be like the
past is only a recognition of the fact that the systemic distinction that
each of us makes at each instant between two segments of time,
however important it may be to us at the moment, is irrelevant to cer-
tain cosmic processes which govern us and which, if we are scientifically
inclined, we can observe. Systematic relativism is, in this sense, a safe-
guard against the naive assumption that I am the center of the world
and that Now is the critical moment of history.

This viewpoint with respect to the relativity of proof throws light,
I think, on the problem of probability. No fact has, in itself, an assign-
able probability. It either exists or does not exist. And what is true
of one fact is true, a thousand times, of a thousand facts. The empirical
frequency of a certain occurrence is a fact and not a probability. To be
specific, there is no probability that I as an individual will live another
ten years. Different insurance companies may assign different degrees of
probability to this possible event, depending upon whether they classify
me with respect to age, health, weight, occupation, and heredity, or dis-
regard one or more of these factors, or weigh the factors differently,
A degree of probability can be assigned only within a system that selects
certain elements as relevant, disregards others, and deals with the char-
acteristics of classes defined by these relevant elements. There is no
absolute system with which these selective systems can be compared, and
if there were an absolute system there would be no probability. The
system which any insurance company adopts may fail The probability

RELATIVITY OF PHILOSOPHICAL SYSTEMS

that any insurance company will fail is itself a risk that a reinsurer may
take, and this risk will be variously calculated by different reinsurers.
The human acceptance of a system of selective elements cannot be
uniquely determined by any criterion of truth, but must inevitably in-
volve an element of convention or purpose.

The problem of the a priori is subject, I think, to the same type of
analysis. Since the notion of the relative a priori has been developed
with some care in Professor Cohen's Reason and Nature18 and in
Professor Lewis's Mind and the World Order,19 I shall not offer more
than a summary note of explanation. That is a priori to a system which
cannot be proved or disproved within the limits of the system but is
assumed in the development of the system. This assumption may be
embodied in a postulate or in a definition. I know, a priori, that color
involves space if I have defined color in such a way that a phenomenon
not involving space would not be called a color. If I define color in
some other way, the proposition that color does involve space may be
provable, capable of disproof, or indeterminate in truth value. I know of
no material proposition which is a priori for all rational systems, and I am
inclined to believe that such a proposition does not exist. Of the purely
logical or analytic a priori I do not speak.

(j) The Relativity of Classification

Applied to the notion of class, the viewpoint of systematic relativism
suggests that classification is relative to context, that no entity contains
within itself a unique principle of classification. Any entities may be
grouped together in a class. If certain classes seem more "natural" than
others this is largely the result of language and habits of thought that
change with changing cultures and vary in various contexts. Failure to
recognize the relativity of classification to purpose or system is a fruitful
source of empty argument. Thus people argue for or against the proposi-
tion that international law is a kind of law, or that the social sciences
are sciences, or that man is an animal, as if these were propositions
with a fixed meaning, true or false, and are continually surprised because
such arguments never convince their adversaries. Recognition that such
assertions are merely ordering principles for systematic thinking, in the

18. Cf. M. R. Cohen, Reason and Nature (1931), pp. 143-46.

19. Cf. C. I. Lewis, Mind and the World Order (1929), p. 231: . . . "that is a priori
which we can maintain in the face of all experience, come what will." Again Lewis
writes: (ibid., p. 303): "That all swans must be birds, does not legislate out of
existence any possible creature."

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LOGIC, LAW, AND ETHICS

nature of definitions, shifts argument to the level of testing the com-
parative usefulness for agreed ends of alternative methods of systematiz-
ing experience.

(4) The Relativity of Causation

Applied to the notion of cause, the method of systematic relativism points
to the plurality of systems in which lines of causation can be traced.
If the question is asked, in the system of physics, ''What causes the
periodic rearrangement of these pages?" an answer in terms of my desire
to get to the next page is quite irrelevant.

The notion of the relativity of causation throws light, I think, upon
a central problem of jurisprudence. When we seek to impose a liability
upon the person who has caused an injury, a science that utterly ignores
ethics can never fasten responsibility upon any one individual. An event
in society typically involves antecedent events by many persons, including
persons no longer alive at the time of the event. If, as a matter of fact,
we fasten the thread of causation to one person it is because here is
a point in the myriad strings of historical connectedness where social
pressure accomplishes some approved social purpose.20

The relativity of causation implies the relativity of the accidental.
The pure accident does not exist. A hurricane may be an accident in
a social system but not in a system of meteorology.

If causation is relative to system, the whole problem of chance and
determinism must be reformulated. Any event is determinate within a
system that postulates the sufficient conditions of the event, and indeter-
minate in any other system. The fact that an act of a human being is
deteVmined in the system of physical motion does not mean that the act
is determined in another kind of system. No event is in itself determinate
or indeterminate.

(5) The Relativity of Individuality

I think that a good deal of confusion in political life as well as in
philosophy has been caused by an absolutistic view of individuality.

20. There is illumination in the comment of Judge Andrews in the case of Patsgraf
v. LJJR..R. (248 N.Y. 359): "Each cause brings about future events. Without each the
future would not be the same. Each is proximate in the sense it is essential. But that
is not what we mean by the word. Nor on the other hand do we mean sole cause.
There is no such thing. . . . We cannot trace the effect of an act to the end, if end
there is. Again, however, we may trace it part of the way. . , , This is not logic, It is
practical politics."

1 08

RELATIVITY OF PHILOSOPHICAL SYSTEMS

In the system of psychology, or at least in some systems of psychology,
I am an individual. From the viewpoint of the biology of unicellular
organisms, I suppose I am a cooperative society of several million mem-
bers, the membership of which is constantly changing. From the
sociologist's viewpoint, I suppose I am only a part of a community or
society, perhaps a part of many concentric or overlapping societies.

Is it significant to ask whether I am really an individual or a great
many individuals or only a part of some bigger individual? The thesis
here advanced would require us to maintain that this question is in-
valid/* that individuality is relative to system, that any group may be
an individual from some viewpoint, that any individual may be a
group from some viewpoint.

This, of course, is merely an example of what might be called the
relativity of number to the unit of operation. In its everyday forms this
relativity is accepted by common sense. A quart is two pints and is at
the same time a fourth of a gallon. The same liquid thus partakes of
plurality, unity, and partiality, with reference to different standards. So,
when the monistic lamb in Professor Strong's philosophic fable, refusing
to recognize a real distinction between the nutritious and the poisonous,
told its mother that, after all, the universe is one, the lamb's mother,
being a thorough-going systematic relativist, replied, "One what?" 22

What we call a principle of individuation is, in effect, a formula for
designating units of operation within a rational system. If alternative
systems are valid, alternative principles of individuation are likewise
valid.

This viewpoint dissolves a good many philosophic problems that seem
otherwise insoluble. The metaphysical problem of the personality of
groups which runs through political philosophy and jurisprudence
vanishes once we recognize that the term "person" may be defined to
cover various units in the segmentation of human activity. There re-
mains the question of what definitions are useful for certain purposes,
but this is no longer a problem of metaphysics.23

This notion of the relativity of the individual person or thing sug-
gests the thought that what is substance in one context may be quality
or relation in another context. The distinction between essence and

21. Cf. F. S. Cohen, "What is a Question?" [above, p. 3].

22. C. A. Strong, The Wisdom of the Beasts (1921), p. 60 ("The Lamb and its
Mother"), The answer of the lamb, as reported by Professor Strong, was: "I am not
quite sure; but if I have correctly understood my illustrious teachers, it is one Lamb."

23. Cf. John Dewey, "Corporate Personality" in Philosophy and Civilization (1931);
F. S, Cohen, Ethical Systems and Legal Ideals (1933), pp. 9-16.

109

LOGIC, LAW, AND ETHICS

attribute, between substance and quality, between entity and relation,
is, like the distinction between the individual and the society that in-
cludes the individual or the environment that surrounds the individual,24
relative to the contextual system in which the distinction is drawn.

V. CONCLUSION

The method of systematic relativism, applied in the jungles of politics,
frequently demonstrates that what appear to be bitter differences of
opinion on practical matters are actually differences of terminology or
perspective. Rational argument in this situation becomes possible only
when, through some emotional shift, one party comes to accept the
postulates and definitions of his adversary and to talk in the same
system, or when a third party (i.e. a "politician" or "statesman") is found
who can talk to each of the disputants in his own system and thus offer
each a practical solution which is what he wanted all along and was
convinced his adversary did not want, but which, as a matter of fact,
his adversary does not object to if only it is phrased in the proper way.
It is the chief purpose of this paper to suggest that a similar process
of resolution may be applied to philosophical controversies. The prag-
matic or operational meaning of systematic relativism may be summed
up in these proposals for dealing with philosophical controversy:

1. Never assume that a philosophical doctrine is a true-or-false proposi-
tion. Its significance may lie in its function in organizing inquiry.

2. Beware of assuming that any particular perspective is pre-eminent
or that any philosophy is unavoidable or that any truth can be expressed
in only one language.

3. Never assume that two philosophers who use the same symbol mean
the same thing, or that those who make apparently contradictory as-
sertions really disagree. They may be talking different languages.

4. In order to determine whether two philosophical doctrines are
compatible, incompatible, or identical, look for a formula of translation
by which propositions within one philosophical system may be correlated
with equivalent propositions in the other.

24. The "problem of free will" is a product of two absolutistic fallacies: the notion
that there is an absolute line of distinction between the individual and the environ-
ment, and the notion that there is a one-way causal relationship between the two. I
have elsewhere suggested that there is an alternative view: "... the human soul is
neither the master nor the slave of its environment. The human soul is its environment,
seen from within/' F. S. Cohen, "The Socialization of Morality" [below, p. 349].

Law and Language

SOME three years ago I had the very great honor of sharing a lecture
platform with one of the most distinguished anthropologists of America,
one of the few anthropologists who has grappled with the fundamental
problem of native property law.* We travelled together to a Protestant
Church in Philadelphia, where we were to speak on the subject of Indian
land tenures, and as we entered he said to me: "Here we are, Jew and
Catholic, going into a Congregational church to speak to a Quaker
audience on the rights of pagan Indians. Where else but in America could
this happen?"

Tonight I feel very much as Father Cooper and I both felt that even-
ing three years ago. Here I am, a stranger, both to the Roman Law and
to the Catholic University, graciously invited to speak before this
seminar. I am moved to repeat Father Cooper's question: "Where but
in America would one find this hospitality to diversities of tongue and
creed, this faith in a common humanity that rises above the barriers
of border and breed and birth?" And it is in that spirit that I should
like to say my few words tonight about Roman law as an institutional
manifestation of that faith in humanity that stands above all divisions
of tongue, creed, and ancestry. I want to speak of the Roman discovery
that law is more than words and language forms, more than verbal rules.
I want finally to speak briefly on the bearing of that discovery upon
contemporary jurisprudence.

When Dean Brown j- very generously invited me to attend this Semi-
nar, he explained to me that one of his students in jurisprudence
was currently engaged in dissecting me, along with some other so-called

* [Ed. note: Father John Cooper, an outstanding authority on aboriginal land
tenure in North America, particularly among the Indians of Canada, and a professor
of anthropology at Catholic University.]

f [Ed. note: Dr. Brendan F, Brown, Dean of the Catholic University School of
Law.]

Unpublished paper presented at the final conference of the Riccobono Seminar in
Roman Law at Catholic University, Washington, D.C., 1949.

ill

LOGIC, LAW, AND ETHICS

realists, and I had visions of myself stretched out on a table alongside
a turkey, or rib roast, being dissected. Dean Brown, being a sensitive
soul, must have detected a shadow of terror across my countenance and
immediately, in order to put me at ease, explained that he too was a
realist, although, he added, a scholastic realist. His words put me at my
ease. For I have long considered myself a realist, not merely in the
modern sense of one who accepts the reality of tables and lamb chops
and other things that quickly pass into dust and oblivion, but also in the
scholastic or Platonic sense of realism, as one who accepts the reality
of time, mathematics, injustice, and many other things that one cannot
eat or break apart with a hatchet. As a realist I have never felt, as do
some of my contemporaries, that the term "scholastic" is an epithet of
reproach. If it be true that scholastics once debated how many angels
could stand on the point of a needle and, as far as I know, we have
no more reliable authority than Rabelais for that report, I still see no
great difference between such a discussion and the discussion that some
of my distinguished colleagues have been carrying on for a good many
years, over the question of how many sovereigns can stand on the point
of a divorce. I have never seen an angel or a sovereign or a corporation,
and I doubt that angels or sovereigns or corporations exist in the way
that tables and lamb chops exist, but I have seen too many corporate
deeds and angelic deeds to doubt the reality of corporations or angels.

The fact is that the schoolmen of the Middle Ages kept intact the
tenuous threads that link our living thought today to the thought of
Aristotle, Archimedes, Euclid, Hippocrates, and Justinian. I see about
me here the echoes, caught in stone, of walls and towers that once de-
fended the values of the spirit against the attacks of barbarians and
philistines in an age of ruthless violence. And the mighty men outside
those walls are dust and ashes now, while the unworldly thoughts of
the schools live on, and even the shape of the stones that housed these
medieval scholars has become a living guide to the architects of our day,

I know that it is fashionable to use the term "casuistry" as a term
of opprobrium. But actually, aside from the overtones of prejudice,
casuistry is what we now call the case method. I do hope that before
he completes his dissection, Dean Brown's student will read my article
on casuistry in the Encyclopedia of the Social Sciences,* where I de-
scribe casuistry as the persistent effort to clarify and test abstractions and
generalities by constant application to concrete cases. And that, I think,
is also the chief motivation of realistic jurisprudence.

There is good reason, I think, why a realist in the law, whether

i. [Above, p. 14],

LAW AND LANGUAGE

scholastic or unscholastic, should feel at home, even among strange terms
in a sen.inar of Roman law. For realistic jurisprudence, in essence, is
the idea that rules, principles, and opinions do not exhaust or explain
actual judicial decisions. And this idea is set forth with great clarity
in the woiis of Paulus, preserved by Justinian: "Non ex regula jus
sumatur, sed ex jure quod est regula fiat/'2 ("Let not the law, or de-
cision, be derived from a rule, but let the rule, rather, be drawn from
the law or decision in which it is involved/')

It is no accident that he who has been called "The Last of the
Romanists" — I am sure an unjust appellation in the light of the work
of the Riccobono Seminar — was also in some sense the founder of the
modern realistic approach in jurisprudence. I refer, of course, to Rudolph
von Jhering. Who can forget his account of his visit to the Heaven of
Legal Concepts, the juristisches Begriffshimmel, where accomplished ju-
rists split the finest hairs into 999,999 equal parts and press infinite
meanings out of statutes under a dialectic-hydraulic interpretation press?
Surely von Jhering's critique of the jurisprudence of concepts gave a
worthy start to the labors of Holmes, Oliphant, Llewellyn, and even
Jerome Frank.

The Roman capacity for realism was not an abstract matter. It carried
itself into the analysis of every legal concept. Take, for example, the
problem: What is a contract? You will find most modern authorities
telling you that a contract at common law is a promise given for
valuable consideration, or a set of promises, or an agreement or meeting
of minds. What these definitions all ignore is the simple historical fact
that the most important common law contracts did not involve promises
at all, nor did they involve meetings of minds. The fundamental con-
tract of the early common law is the speciality, which most simply takes
the form of a deed poll, that is to say, a deed with a smooth-shaved
edge because there is only one party to it and it does not have to be
torn apart, like an indenture, to provide two parties each with half of
a document. Characteristically, the deed poll, or patent, or charter,
begins with the words: "Sciant praesentes et futuri . . ." words atro-
ciously mistranslated into the meaningless hodge-podge, "Know all men
by these presents." But clearly the original formula means: "Know all
men present, and all in the future," that I, John Doe, have granted and
conveyed Black Acre to Richard Roe. Richard Roe has paid me, per-
haps, and I have given him Black Acre, granted to him and his heirs
forever. There is not a promise in the document, unless it be one implied
for the sake of preserving a theory.

2. Dig. 50:17:1.

LOGIC, LAW, AND ETHICS

This is not the place to analy/e the nineteenth century theory that
commerce affects only the parties to a contract and that the L w must
carry out their intentions and promises without regard to auy social
•interest. The Romans had no such superstition to mislead them. For the
Romans, contract was an obligatio, an obligation, a vincuhm juris, a
chain of the law, a limitation upon one's legal powers. A limitation of
present rights, a grant, is as much a vinculum juris as a promise to do
something in the future. I find in a single line of Justinian's Institutes
more light on the nature of contract than will be found in half a dozen
modern textbooks. The line that I recall is the title of one of the chapters
of the Institutes: "De Quibus Modis re obligatio contrahitur " *

There you have it: obligatio contrahitur. An obligation, a specific legal
disability, is contracted as one might contract influenza, or any other
specific physical disability. A disability, physical or legal, may be con-
tracted because one indulged in behavior which one regrets, But it is
not essential that one should have intended or willed the final result. The
final result of a marriage contract or a contract of employment is im-
posed by the law, even where the parties sought to escape the conse-
quences that the law attaches to their acts. Attaching fixed consequences
to human acts is an essential part of the duty of the state in safeguarding
interest larger than the interests of the particular contracting parties.
For half a century our courts failed to see that a sovereign state cannot
subordinate social policy to the wishes of the contracting parties with-
out betraying its trust. Today, fortunately, there is increasing aware-
ness that in contract law, as elsewhere, the common weal is more im-
portant than the intentions of the parties. The increasing participation
of the Solicitor General of the United States in private litigation is one
indication of this return to the realism of the Romans.

Law, then, to the Roman jurists, is more than verbal rules, more than
the expressed will of contracting parties. Law is more than language.

To know the laws, as another great Roman realist, Celsus, said, is not
merely to grasp their words. It is, rather, to grasp their force and power.
"Scire leges non hoc est verba earum tenere> sed vim et potestatem" *
Did Celsus ever dream how right he was? Did he have any idea that
long after the words of the jurists of his age had ceased to be heard in
the forurn, the force and power of Roman law would continue to be felt
in lands of which Celsus and his countrymen had never heard; in nations
as far removed from Rome as Ecuador and Japan? Could he know that
two thousand years of technological change would leave unbroken the

3. Bk. 3, Tit, 14.

4. t>ig. 1:3: 17.

114

LAW AND LANGUAGE

frame and pattern of Roman law concepts of man's just dealings with
man?

We know that conditions of life today in Switzerland and Brazil and
Japan differ from each other in important respects and differ even more
egregiously from the conditions which faced the Roman citizen in the
second and third century. Modern sociology leaves no room for doubt
as to the importance of these differences of time and place. And yet there
was in Celsus and in his fellow- jurists a faith in the essential humanity
of man everywhere and at all times the faith which had engendered the
Hellenic idea of natural law. There was a faith that in the really im-
portant relations of man to man, what was said in any form of words
might be translated again and again into other words and other lan-
guages without losing its force or its power. And why should it not be
so? The great masters of Roman law were not all Italians. They were
Bulgarians like Justinian, or Greeks like Gaius, or Syrians like Ulpian
and the great Papinian, who preferred death to the defense of an
emperor's fratricide and commented that it was easier to commit murder
than to defend it. We may be sure that these Roman jurists spoke with
many different accents. And what they could translate out of the ways
and customs and wisdom of their own people and out of their diverse
traditions into the common tongue of the Empire could be retranslated
from that tongue into the languages and the thought-ways and the life-
ways of many nations yet unborn. Out of the jus gentium which was
the cross-fertilization of the wisdom of many lands and many races would
come a new, strong, hybrid corn.

Two thousand years of history have seen the concepts of Roman law
translated into every language of modern civilization. The common law
is full of Roman law concepts and maxims, and today, in such American
jurisdictions as Puerto Rico and Louisiana, we can see the concepts of
Roman law being translated, case by case, into English and into com-
mon law, as they have been translated into hundreds of other languages
and codes down through the centuries.

For most of humanity, across the centuries, the horizons o£ sympathy
are bounded by the reach of our tongues. We are very much like cows
in that regard. Not only are those who speak a different language looked
down upon as foreigners, outcasts, barbarians, but even those who speak
the same language with a different accent are commonly felt to be
inferior folk. You all recall the conversation between Huckleberry Finn
and Jim as they drifted down the Mississippi and how patiently Huck
tried to convince Jim that if a Frenchman said to him "Parlez-vous
Francais?" — it wasn't really necessary for Jim to "bust him over de head."

LOGIC, LAW, AND ETHICS

You all remember the long argument and Jim's final crushing comeback:
"Well, den! Dad blame it— if a Frenchman is a man, why doan' he talk
like a man?"

Now, it is easy to be tolerant of theoretical errors and disagreements,
especially if you don't think that theory is very important, after all. But
it is very difficult for men to be tolerant of differences of pronunciation
and accent. Paint a crow white and other crows will attack it and peck
it to death. Man rises above this animal heritage of intolerance by slow
and painful steps. Even children and simple farmers who have had no spe-
cial training in intolerance are capable of the most intense cruelty towards
people who come from another neighborhood. In fact, there are some
sections of our country, otherwise renowned for their hospitality, where
it is dangerous to travel without police protection if one speaks with
the wrong kind of accent, or has color reactions different from those of
the general population, or even if one has Hatfield ancestors in McCoy
territory, or vice versa. The less-publicized and less demonstrative hos-
pitality of a great city that opens its arms to pilgrims of all lands, all
tongues, and all creeds is a much rarer achievement in human history.
Such a city was Rome and such a city was Byzantium, and it was the
tolerance of the cosmopolitan city that gave to Roman law a strength
that would survive all barbarian conquests and civilize every barbarian
conqueror.

The vision of Celsus of a law that would outlive any form of words
in which it might be temporarily imprisoned was no other-worldly vision.
It was realism, through and through. Society could not survive without
force and power, vim et potestatem, and law as the form of such coercion.
Not verba, but vis, even vi et armis. Not words but force. And something
more than force — power, potestas. Force we see as the fasces, the sword
of justice, the man on horseback. But power is something more. How
much more is hard to say, but in the welter of controversy one thing
stands out. Those who think that society is ruled by bankers and prop-
erty owners, those who think we are governed by judges, those who insist
that the Presidency has become a dictatorship, and those who think we
are ruled by the chairmen of Congressional committees, all agree on one
thing: That we are ruled by men who can get off their high horses, take
off their swords, and sit in chairs. The President is the man who sits in
front; the possessor, who is nine-tenths of the law, is the man who sits
behind. Legislative authority emerges from sessions or sittings. The
judiciary derives its authority from the Bench on which it sits, and so
does the banker. Royalty owes its power to the fact that a king can sit on
a chair, the Greek thronos, or throne. And another Greek word for chair,

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LAW AND LANGUAGE

cathedra, has given us the ultimate sanctions of spiritual authority.

The French have a proverb: "L'on peut tout faire avec les baionettes
sauf s'y asseoir." One can do everything with bayonets except sit on
them. And government must have a seat. At some point in the struggle
for power there must be a sitting-down place where the threat of force
is so clear and so solidly supported by society that the actuality of force
becomes unnecessary.

And so, as Celsus saw, law is more than words and more than brute
force: it is an arrangement for making the impact of social force so clear,
so predictable, and so widely acceptable and supportable, that the actual
use of such force may be reduced to a minimum. And ordinarily this end
can be accomplished only if the law gives to the human beings it serves
more than it demands of them. We meet here tonight because some 2,400
years ago the forgotten men of Rome, immigrants and the children of
immigrants from all of Italy and all the lands of the Mediterranean,
peddlers, shopkeepers, and skilled workers, engineered one of the great
revolutions of history. These forgotten men, not being of the First
Families, had no share in the legal prerogatives of the original Roman
gentes. And they demanded public, uniform, written rules of law, laws
which would deal equally with the home-born and the stranger. And
these rules, engraved in words that could not be erased, or misread, or
concealed, these Twelve Tables, have stood the test of the centuries well.
Developed, elaborated, interpreted, but still true to the faith in a com-
mon humanity, the faith which gave them birth — they have become the
law of most of the civilized world.

So it was with other stone tablets of a thousand years earlier, which
have been translated into a thousand tongues unknown on the wild
desert of Sinai: "The stranger that sojourneth with you shall be unto
you as the homeborn among you and thou shalt love him as thyself; for
ye were strangers in the land of Egypt: I am the Lord your God." 6 "Ye
shall have one manner of law, as well for the stranger as for the home-
born: For I am the Lord your God." 6

Do we not find here at the dawn of the great tradition that we call
the Roman law, and at the dawn of that other great tradition which
we call the Judeo-Christian ethic, a common perception of this basic
truth, basic to all liberal civilization as we know it, that righteousness
is not merely an obligation within the family or the tribe, within the
circle of a common tongue, but, rather, an obligation which every
man owes his neighbor, an obligation to which tribal affiliation, ancestry,

5. Leviticus 19:33.

6. Leviticus 24:22,

LOGIC, LAW, AND ETHICS

creed, race, color, and the diversities of human speech are distracting
irrelevancies?

Huckleberry Finn and Celsus both appreciated that men might use
different sounds and still mean the same thing. That appreciation is
much needed, I think, in contemporary legal philosophy. There is far
too much ticketing and labeling and pigeon-holing of schools of juris-
prudence on the basis of language habits and vocabularies. Languages,
words, frames of reference change. But what was said in any language,
if it is of universal significance, can be translated into any other lan-
guage. What Francisco Vitoria, the real father of international law, said
in 1532 about the injustice of various schemes for depriving the American
Indian of his lands, is still true and still an eloquent commentary on
schemes which are being carried on today, particularly in Alaska, by the
spiritual descendants of Spanish pirates and conquistadores. To be sure,
Vitoria was called a professor of moral theology instead of being called,
as he might be today, a professor of legal sociology. But essentially are
not both moral theology and legal sociology attempts to get beyond dry
verbal rules and to see issues of justice and injustice in terms of human
lives and ultimate values?

Is it not childish to assume that when Aristotle talks about the law
as reason unaffected by desire, he is talking about the actual decisions
that judges hand down? Aristotle knew how easy it was for judges to
become corrupted by the power they exercise. When he talked about
law as reason unaffected by desire, he was projecting an ideal of judicial
conduct which, like the ideals of truth in science and of beauty in art,
would be valid as an idea long after the empire of Aristotle's most
famous student had crumbled into oblivion.

Why should we assume, as a distinguished writer on jurisprudence
does, that when Coke said that the life of the law was reason, and when
Holmes said that the life of the law was experience, and not logic, they
must have been contradicting each other? Is it not possible that Coke's
reason which, as he carefully explained to King James, was not natural
reason or science, such as the King himself exhibited, but the artificial
reason acquired by those learned in law, is pretty much the same thing
that Holmes was talking about when he said that experience was the
life of the law? Is it not possible that Coke and Holmes were not con-
tradicting each other at all but, rather, expressing in the languages of
different ages a common regard for the continuing search of judges into
the human meaning of the law?

Why assume, as some contemporary critics of realistic jurisprudence
assume, that those of us who are interested in discovering precisely

LAW AND LANGUAGE

what judges are doing in various situations are uninterested in the larger
problem of what judges ought to be doing? Perhaps it is only because
we are interested in this larger problem that some of us, in the name
of realism, are trying to achieve a more accurate view of what happens
to litigants in law suits than one will find in some of our most
illustrious textbooks.

A great philosopher has remarked that no two philosophers ever
quite understand each other. Perhaps it would be true to expand the
remark and to observe that no two human beings ever quite understand
each other. Yet, the possibility of world peace, dim though it appears,
waits upon our progress in this path toward mutual understanding. And
in this struggle it seems to me that modern logic may reinforce the
vision of Moses and of Celsus. One of the great contributions of modern
mathematical logic, and particularly of the logic of systems, as de-
veloped by my revered teacher, Professor Sheffer of Harvard, is the
idea of a formula of translation, through which a statement, true
in one system, may be translated into a statement in another system that
sounds quite different but that means the same thing. If I proclaim,
"This house is mine," my neighbor cannot confirm my assertion by
repeating my words; he must, to confirm my assertion, use the translation
formula which enables him to say, "This house is not mine." To a
narrow verbal logic the two statements, torn out of context, may appear
contradictory. But a more comprehensive logic shows that no proposi-
tion is true or false in itself, that every proposition depends for its
meaning on the system of which it is a part.

Some such idea may help us to avoid the quarrels and confusions
that arise when we assume that Holmes and Aristotle and Coke and St.
Thomas all meant the same thing by the word "law" or the word
"reason," and that therefore two different statements in two different
mouths using these words must be inconsistent with each other. But it
is not enough to know that Holmes and Aristotle mean different things
by law. What is even more important is that we should be able to
define the variation with precision. If I know the magnetic deviation
of my compass, it will not lead me into a wrong port. And if all this
be so, no one language, no one frame of reference can claim a monopoly
on the truth.

I yield to no one in my admiration of Jeremy Beruham, as the chief

architect of most of the great legal reforms of the past century from

the codification of international law — even the words codification and
international are Benthamite creations— to the rationalization of legal
procedure, workmen's compensation, social security, the humanization

LOGIC, LAW, AND ETHICS

of the criminal law, and the reform of our prison system. And yet when
Bentham called the language of natural rights, the language of the Amer-
ican and French revolutions, "nonsense on stilts/' he was not quite up
to Huckleberry Finn's level of tolerance. He was still saying with Jim,
"Dad blame it, if a Frenchman is a man, why doan' he talk like a man."

I find today in my classes in jurisprudence a regrettable tendency
on the part of those who think and speak in the language of Hobbes
and Bentham and Holmes to consider that those who have talked in
another language, the language of natural right or natural law, have
nothing worthwhile to say. Any such assumption is isolationist. It cuts
us off from the wisdom of other ages and other minds and from the
aid of our natural allies.

If what Aristotle had to say about law, what St. Thomas, Hobbes,
Bentham, Austin, and Holmes have had to say about law, was, as I
believe, worth saying, then the substance of each of these great con-
tributions to jurisprudence must be capable of translation into every
other jurisprudential tongue, both the tongues of the present and the
tongues of the future. For any of us to shut our ears to strange
accents and to strange vocabularies is to renounce the vision that came
to us in the dawn of our civilization, in the wilderness of Sinai, and
a thousand years later in the crowded city of Rome, that as the life
that is worth living may be lived under any color of skin, so that
which is worth saying can be said in any language.

Field Theory and Judicial Logic

A new concept appears in physics, the most important in-
vention since Newton's time: the field. It needed great scientific
imagination to realize that it is not the charges nor the particles
but the field in the space between the charges and the particles
which is essential for the description of physical phenomena.*

I. THE PARADOXES OF JUDICIAL LOGIC
Are Lawyers Liars?

Anyone who has read the statement of facts in a large number of
briefs of appellants and appellees is likely to conclude that any re-
semblances between opposing accounts of the same facts are purely
fortuitous and unintentional. The impression that opposing lawyers
seldom agree on the facts is strengthened if one listens to opposing
counsel in almost any trial. Now, as a matter of simple logic, two in-
consistent statements cannot both be true. At least one must be false.
And it is always possible that both are false, as, for example, when the
plaintiff's attorney says the defendant speeded into the zone of the
accident at sixty miles an hour and the defendant's counsel insists
his client was jogging along at twenty miles an hour, while, in fact, he
was moving at forty miles an hour. Thus, a logician may conclude
that either (i) at least half of our practicing lawyers utter falsehoods
whenever they open their mouths or fountain pens, or (2) that a
substantial majority of practicing lawyers utter falsehoods on a sub-
stantial number of such occasions. If we define a liar as a person who
frequently utters such falsehoods,1 it would seem to follow logically
that most lawyers are liars.

i. To define a liar as a person who always lies would be to set standards practically
incapable of human attainment. Even the most confirmed liar is likely to tell the
truth sometimes. Otherwise, the people he talks to will not believe him and the pur-
pose of his lying will not be accomplished.

* Einstein & Infeld, The Evolution of Physics (1938), p. 259.

Published in Yale Law Journal, 1950.

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LOGIC, LAW, AND ETHICS

How the edifice of justice can be supported by the efforts of liars at
the bar and ex-liars on the bench is one of the paradoxes of legal logic
which the man in the street has never solved. The bitter sketch of
"Two Lawyers" by Daumier still expresses the accepted public view
of the legal profession. So, too, does the oft-told story of Satan's refusal
to mend the party wall between Heaven and Hell when it was his
turn to do so, of St. Peter's fruitless protests and threats to bring suit,
and of Satan's crushing comeback: "Where do you think you will find
a lawyer?"

Of course, lawyers know that the popular opinion on these subjects
is inaccurate. Lawyers have ample opportunity to know how earnestly
two litigants will swear to inconsistent accounts of a single event.
Lawyers thus have special opportunities to learn what many logicians
have not yet recognized: that truth on earth is a matter of degree, and
that, whatever may be the case in Heaven, a terrestrial major league
batting average above .300 is nothing to be sneezed at.

The difference between the lawyer's and the logician's view of truth
is worth more attention than it has had from either lawyers or logicians.

From the standpoint of rigorous logic, a proposition is either true or
false. There is no middle ground. A statement such as "It is raining,"
which is true at one time and place and not at another, is ambiguous,
and an ambiguous sentence is not a proposition, though each of its
possible meanings may constitute a proposition. Indeed, the character-
istic of being either true or false is commonly utilized in modern logic
as the defining characteristic of propositions.

Life, unfortunately, is not so simple. Logicians may define propositions,
but whether they can find or create propositions is another matter. Even
if we convince ourselves that there are propositions, it does not neces-
sarily follow that we can actually create them or find them; we may
convince ourselves that there is, somewhere, an oldest man on earth,
without ever being sure who he is.

One of the greatest modern logicians, Alfred North Whitehead,
used to say: "We shall meet propositions in Heaven." By this he meant
that the symbolism of terrestrial life is too fuzzy ever to reach absolute
precision, so that unambiguousness is an ideal rather than an attain-
able fact, Every actual humanly constructed sentence has different shades
of meaning to different readers. This is most likely to be the case in
fields of controversy where different readers bring different examples,
contexts, and values to bear on any given word. In any such situation
a sentence will embody not a single proposition but several propositions
which are ideally distinguishable. Some of these propositions may be

FIELD THEORY AND JUDICIAL LOGIC

true. Some may be false. The relation of true meanings to false mean-
ings that flow from a single sentence generally involves a complicated
quantitative distribution pattern. The simple, traditional true-false
dichotomy is often quite useless.

Take, for instance, a typical humanly constructed sentence, one which
has been uttered, down through some 3,000 years, by hundreds of
millions of human beings of many races, many tongues, and many
religions:

The Lord is my shepherd; I shall not want.

What sense does it make to ask whether this sentence is true or false?

Of course, there may be literal-minded readers of the Bible who will
insist that the sentence has only one "correct" meaning, which is true,
and that any variant interpretation is simply erroneous.

There are, no doubt, equally dogmatic individuals who will insist
that the sentence is simply false. If they are dogmatic atheists, they
will tell us: "There is no Lord, and therefore He cannot possibly be a
shepherd." If they are Montana cattlemen, they may add that nobody
in the sheep business could possibly deserve to bear the name of the
Lord. Others there are who have outgrown the effort to make God in
man's image, but still recite these words with full sincerity. To some
such, the words of the Psalmist mean that the forces of evil are somehow
self-defeating, that ultimate victory rests with the forces of righteousness,
that none of us is self-sufficient, that none of us is capable of pro-
tecting himself against all the dangers that surround us from cradle
to grave, and that sanity requires a faith in an unseen power that will
protect us and guide us as a faithful shepherd guides his sheep, seeing
that their wants are fulfilled. But one who thus translates the words of
an ancient poet into the context of his own beliefs has no right to assume
that this is the only context in which those words have significance. He
will be content to say that they have truth for him.

This dependence of meaning upon a personal frame of reference is
something that many of us take for granted when we refuse to argue
over affirmations of religious faith. May not the same dependence of
meaning and truth upon varying contexts be found in non-religious
fields as well, even in the mundane fields which concern lawyers and
their clients? May we not say, even, that law as, par excellence, the
field of controversies, is the field in which the imposition of different
meanings upon the same verbal formula is most characteristic and most
significant?

If anybody asks us whether the first sentence of the Twenty-third
Psalm is true or false, we may properly conclude that the interrogator

123

LOGIC, LAW, AND ETHICS

is lacking in imagination and guilty of the fallacy of misplaced con-
creteness. That is because we realize that a sentence of this sort (and
perhaps every other humanly constructed sentence, in greater or lesser
degree) means many things to many minds. Perhaps, if we look closely
enough, a sentence never means exactly the same thing to any two
different people. For no two minds bring the same apperceptive mass
of understanding and background to bear on the external fact of a
sound or a series of marks. Indeed, I doubt whether any sentence
means exactly the same thing to me the first time I hear it that it
means the tenth time or the hundredth time. Of course, for many practical
purposes, we are disposed to overlook such variations of meaning. Each
of us is likely to try to fix on a particular segment of our thinking,
at a particular time, as "the real meaning" of any sentence. We may
then consider all other interpretations as more or less serious aberrations.
Perhaps we may be justified in holding that our own specific under-
standing of the sentence at a particular time is a proposition, and
either false or true. But what, then, shall we say of the sentence as a
social fact, a source of many interpretations, a matrix of many proposi-
tions? Must we not say that the truth of any assertion is a matter
of degree, that from certain angles the sentence may give light and that
at other angles it may obscure more light than it gives? The angle or
perspective and the context are part of the meaning of any proposition,
and therefore a part of whatever it is that is true or false.

The location of words in a context is essential to their meaning and
truth. The fallacy of simple location in physical space-time has finally
been superseded in physics. We now realize that the Copernican view
that the earth moves around the sun and the older Ptolemaic view that
the sun moves around the earth can both be true, and that for practical
though not aesthetic or religious purposes the Ptolemaic and Copernican
astronomies may be used interchangeably.2 We realize that Euclidean
and non-Euclidean geometries can both be true. What is a straight line

2. "The new system had a great influence, for example, on men's general feelings
regarding their place in the universe. It is certain that this influence did not originate
from the fact that the new system was encouraging navigation, since for all practical
purposes (such as navigation) it mattered very little whether the positions of the stars
were calculated by the geocentric or by the Copernican system. In this respect the
introduction of the new world system involved only a very slight correction,

"The influence of the Copernican system on the general feelings of men was not con-
nected with the fact that it became a tool which simplified the calculation of the orbits
of the stars, or calculation of some observable phenomena in general. What really
mattered was quite a different feature of Copernicus' system. In this system the lan-
guage and pictures used to represent observable facts were completely different from

124

FIELD TPIEORY AND JUDICIAL LOGIC

in one system may be an ellipse in another system, just as a penny
may be round in one perspective, oval in a second, and rectangular in
a third.

A prosecuting attorney who assumes that policemen are accurate and
impartial observers of traffic speeds will arrive at one estimate of the
speed of a defendant charged with reckless driving. The defendant's
attorney, if he assumes that his client is an honest man and that police-
men on the witness stand generally exaggerate in order to build up an
impressive record of convictions, will arrive at another estimate. If each
honestly gives his views the court will have the benefit of synoptic vision.
Appreciation of the importance of such synoptic vision is a distinguish-
ing mark of liberal civilization. To the anthropologist, the tolerance
that is institutionalized in a judicial system geared to hear two sides
in every case represents a major step in man's liberation from the
tyranny of word-magic. If we do not feel that we have to annihilate
those who say things we do not believe or, what is generally more
irritating, say things we do believe but say them in strange ways or in
unfamiliar accents, we are able to conserve our energy for more useful
purposes. Energy so conserved may produce science, art, baseball, and
various other substitutes for indiscriminate individualistic slaughter.

The disagreements of opposing lawyers on statements of simple fact,
and the even wider disagreements that characterize their views on more
complicated facts ("opinion" and "law"), call for a more humane and
social view of truth and meaning than appears in most of the tra-
ditional logic books. This is not to say that the traditional logic books
are wrong. It is only to say that so far the logicians, having concen-
trated their vision on the logical heavens where words continue at rest
and mean the same thing forever, have not fully explored the imperfect
efforts of human beings to communicate with each other. But there are

the language and pictures through which facts were represented by the geocentric
world-system.

"The geocentric system formulated its propositions in terms such as, 'The earth is
at rest while everything else is moving around it.' Copernicus, however, spoke of, 'an
earth that is moving in a similar way to all the other celestial bodies.' Even if we
could conclude exactly the same observable facts from both these systems, one differ-
ence would still remain: The geocentric system formulated its doctrine in a language
which harmonized with the language used by the people of the Middle Ages to formu-
late their general feeling towards the Universe. Whereas Copernicus used a completely
different language, suggesting a completely different feeling, for example a feeling that
our earth and all the celestial bodies were of equal importance." Philipp Frank, "The
Position of Einstein's Theory of Relativity in the Evolution of Science," 9 /. of Unified
Science (Erkenntnis) 170, 171 (1939).

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LOGIC, LAW, AND ETHICS

welcome indications today that logicians are beginning to pay more
attention to the real world where people seldom say exactly what they
mean or mean all they say, where no two people ever quite understand
each other, where the accumulation of different views of the same event
is the only remedy we have found for fanaticism, and where the logic
of fiction has a more direct bearing upon everyday discourse than the
logic of science.3

In a certain sense, it is true that lawyers are liars. In the same sense,
poets, historians, and map-makers are also liars. For it is the function
of lawyers, poets, historians, and map-makers not to reproduce reality
but to illumine some aspect of reality, and it always makes for deceit
to pretend that what is thus illumined is the whole of reality. None of
us can ever possibly tell the whole truth, though we may conscientiously
will to do so and ask divine help towards that end. The ancient wisdom
of our common law recognizes that men are bound to differ in their
views of fact and law, not because some are honest and others dis-
honest, but because each of us operates in a value-charged field which
gives shape and color to whatever we see. The proposition that no man
should be a judge of his own cause embodies the ancient wisdom that
only a many-perspectived view of the world can relieve us of the endless
anarchy of one-eyed vision.

Thus, it happens that there are implicit in our judicial process certain
attitudes towards truth and reality which have recently become ex-
plicit in physical science. The importance of Einstein's special and
general theories of relativity is not that they make us see that motion
is relative to an observation post. This was recognized long ago. The
real importance of Einstein is his development of formulae by which
many different accounts of the same physical event may be correlated
with each other, so that from the position and direction of an event in
any physical system we can calculate its position and direction in any
other system.4 Einstein has made it possible for us to say that what is
reported as a straight line in one system will be reported in another
system as a curve of a defined form.

What is needed in law, if law is to become more scientific in the future

3, See M. R. Cohen, A Preface to Logic (1944), cc. 4, 5; Thouless, How to Think
Straight (1948).

4, "Indeed, it is quite enough to know the results obtained by an observer in one
CS [Coordinate System] to know those obtained by an observer in the other." Einstein
& Infeld, The Evolution of Physics (1958), p. 16*6.

"The general theory of relativity attempts to formulate physical laws for all CS/' Id
at 249.

126

FIELD THEORY AND JUDICIAL LOGIC

than it has been in the past, is a body of learning from which we can
predict that what looks like a straight story or a straight sale from one
standpoint will look like a crooked story or a crooked sale from another,
and from which we can predict the successive "distortions'* that any
observed social fact will undergo as it passes through different value-
charged fields in the "world-line" 5 of its history.

Concretely, if we see either of the following headlines, we should be
able to predict the other one:

Wall Street Journal Pravda (Truth)

SOVIET ARMIES INVADE YUGOSLAV PEOPLE

YUGOSLAVIA LIQUIDATE PUPPETS OF

CAPITALIST POWERS

Similarly, we should be able to predict that what Justice X will view
as "judicial protection of fundamental constitutional liberties" will
be viewed by Justice Y as "federal interference with the constitutional
freedom of the states to experiment in the solution of their own social
problems." We should be able to understand how the simple physical
fact of a man's skull colliding with a policeman's club will be reported
by the New York Times, the Daily Worker., the attorney for the club,
the attorney for the skull, and the various judges who will view the
event at second hand. Given the report of the event recorded by any
of these observation posts, and knowing the value field of the observa-
tion post, we should be able to predict the report that will be recorded
by any other observation post whose value field we can identify.

That such a form of knowledge is attainable is no empty dream.
Roughly, crudely, and implicitly, we all have some basis in experience
for predicting and discounting the ways in which value fields affect the
reporting of facts.

One of the simplest shifts of perspective is that which is formalized
in grammar by the distinction between first, second, and third person.
Bertrand Russell, in a radio broadcast, under the heading of "con-
jugation of irregular verbs," offered this illuminating example:

1. I am firm.

2. You are obstinate.

3. He is a pig-headed fool.

5. The "world-line" of a body, in modern physics, is the series of all its locations in
space-time. That the earth was between the sun and the moon on a certain day would
be a point in the series that constitutes the world-line of the earth.

1*7

LOGIC, LAW, AND ETHICS

The New Statesman and Nation recently secured from its readers large
quantities of similar conjugations, of which the following are typical:

1. I am righteously indignant.

2. You are annoyed.

3. He is making a fuss about nothing.

1. I have about me something of the subtle, haunting, mysterious
fragrance of the Orient.

2. You rather overdo it, dear.

3. She stinks.6

It is unnecessary to multiply examples. The question that confronts
jurisprudence is whether the practical know-how that enables an experi-
enced judge to discount bias can be formulated and rendered more
systematic and less haphazard. Can we do in law what the mathematicians
and the physicists have done in their more precise domains? Before
we attempt to answer that question, it may be worth our while to view
this question as it reappears in two other legal disguises, as the problem
of precedent and the problem of causation.

The World-Line of a Precedent

The problem of judicial precedent has been a focus of legal philosophy
in America for more than a generation. Those who have criticized our
courts for obstructing the paths of progress have generally suggested
that the chief trouble with our judges is that they pay too much
attention to precedent. Perhaps a stronger case might be made for the
conclusion that judges pay too little attention to precedent and, there-
fore, often misread the lessons of the past. Recent studies in legal
history have made this clear, I think. The courts that invalidated or
emasculated almost all forms of federal social legislation between 1885
and 1935 were generally attacked by laymen as slaves of precedent,
In fact, however, most of the statutes thus invalidated (e.g. those regulat-
ing wages, hours, prices, and employment contracts) had long and re-
spectable genealogies reaching back into medieval and ancient law. It
was the judges who (with the help of Kant and Spencer) were innovating
in the cause of a new gospel of individualism and it is no accident that
those judges who, like Holmes, were conservative by nature and good
legal historians, refused to participate in the fifty years' massacre.

6. Quoted in Hayakawa, Language in Thought and Action (1949), p. 96, And see
Thouless, How to Think Straight (1948), p. 4,

1*8

FIELD THEORY AND JUDICIAL LOGIC

The fact is, however, that the question whether courts should follow
precedent as much as they do is a wholly misleading question. Con-
formity to history, as Justice Holmes observed, is only a necessity and not
a duty. What is true of history in general is equally true of that part
of legal history that we call judicial precedent. No judge could possibly
hand down a decision in any case for which a commentator could not
find a precedent, even if the judge himself failed to find one. To say
that a decision is unprecedented is to say either (i) that we do not agree
with the use it makes of the precedents, or (2) that we do not know
the precedents that might be cited in its support. Each of these state-
ments tells us a good deal about the person who makes the statement
but very little about the nature of the decision and its relation to
the past. In this respect, the statement that a decision is unprecedented
is very much like the statement that certain philosophical or literary
works are "original'1; such allegations only measure the allegator's ig-
norance of history. In short, the real question is not whether judges
should follow precedent (or logic or the law of gravitation or anything
else that they cannot help following, whether they know it or not).7
It is, rather, how they should follow precedent, that is, how they should
interpret past cases and how they should draw the lines of similarity
that connect past cases and present cases.

One of the unfortunate consequences of the sustained controversy
over the judicial duty to follow or to ignore precedent in the interest of
social welfare is the impression that following precedents is a process
of logic. "Up with logic" and "Down with logic" have become the
battle slogans in a controversy where logic is essentially neutral, as it
is in all human controversies. Actually, logic can never establish that
one case is a precedent for another case. That is because no two cases
can possibly be alike in all respects. (If they were alike in all respects,
then, according to the principle of the identity of indiscernibles, they
would be one case, not two cases.) Any two cases, however selected,
are alike in some respects. (Otherwise, they would not both be "cases.")
Whether the respects in which two cases are alike are important is
a question not of logic but of values. Within one framework of values,
it makes no difference whether the defendant in a damage suit is a
helpless widow, a powerful steel corporation, a person of Japanese
ancestry during a war with Japan, a pugnacious labor leader, or a
government official. Under such a standard of "impartiality," the differ-
ences between the parties become irrelevancies. But to a judge who

7. F. S, Cohen, "The Ethical Basis of Legal Criticism," 41 Yale L.J. 201, 219 (1931);
Ethical Systems and Legal Ideals (1933), p. 40,

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LOGIC, LAW, AND ETHICS

thinks that differences between defendants ought to be given weight,
and to a lawyer or observer who thinks that such differences are given
weight, the differences between the parties in the earlier case and the
pending case may seriously change or destroy the precedent-value of the
earlier case.

Consider, again, the time differential that always intervenes between
the "precedent" case and the case in which it is cited. Clearly the fact
that a case has been decided and reported has some social significance.
Perhaps others have relied on the decision. Perhaps other courts have
built on it. How they have relied on it and built on it is not a question
of logic. Often the later interpretation and application of a decision
are such as may shock its original author. But, for better or worse, a
ten-year old decision has a weight and shape that did not exist at its
birth. Its weight and shape embody all sorts of subsequent social
judgments. And the world that surrounds the ten-year old offspring
is an older, if not a wiser, world than that into which it was born.
Contract forms, political forces, and social institutions have changed,
perceptibly or imperceptibly. Here, again, logic will not suffice to
determine whether a case is "on all fours" with any case decided ten
years or a hundred years ago. Whether it is "on all fours" depends upon
what we think of the years between and of their effect on the cases and
affairs of men.

If significant differences between cases may flow even from differences
in dates of decision and differences in the parties, the fact remains that
further differences can always be found, as a practical matter, between
any two cases. There is no precedent that cannot be distinguished away
if you want to distinguish it. The use of a precedent always implies a
value judgment, a judgment that similarities between the precedent and
the following decision are important and that dissimilarities are rela-
tively unimportant. The application of precedent thus always involves
a process of selection or discrimination. But one man's pattern of
selectivity is not the same as another man's. A judge who thinks that
labor organization ought to be encouraged will rebel when decisions in
antitrust cases involving capital are invoked against labor. To such a
judge, the later decision may appear to force the processes of justice
into a purely mechanical mold based upon a false analogy. But a judge
who thinks labor organization has gone far enough or too far may view
the reluctance of his brothers on the bench to decide labor cases In
accordance with the usual antitrust precedents as proof of their willing-
ness to subordinate law and logic to mere expediency or demagoguery.

According to the common view, it is logical to follow precedents but

130

FIELD THEORY AND JUDICIAL LOGIC

illogical to make precedents. But even a slight acquaintance with the
development of modern logic makes it clear that logic is no respecter
of age. There is logic in change as well as in constancy, in relativities as
well as in absolutes. If we give up the old exclusive reliance upon the
form of the syllogism, we do not have to surrender to impressionism.
The rapidly developing logic of relations and of systems, which under-
lies field theory, points to the possibility of a more scientific approach
to judicial prediction than is offered by some contemporary mystics
in the law.

Disagreeing judges and opposing counsel will regularly disagree as
to whether a precedent is squarely in point, not because either side is
mistaken in its logical calculations but because the two sides bring to
bear upon the issue different sets of value judgments. Ordinarily these
value judgments are not made explicit. To make them explicit would,
as Holmes has said, deprive judges of "the illusion of certainty which
makes legal reasoning seem like mathematics." 8 Often the judges who
make these implicit value judgments are not aware of them and would
bitterly and honestly resent the imputation that they are allowing
their own value judgments to enter into the decision of cases. In this
respect, again, judges are like other human beings. We are none of us
aware of our own prejudices: The best way to find out whether a man
is prejudiced against Catholics or Jews or immigrants is not to ask him
but to analyze his descriptions of events in which Catholics or Jews or
immigrants appear. One of the most common manifestations of preju-
dice, for example, is the tendency to mention certain religions or races
in describing a wrongdoer but not in describing his victim.

If we found the same events described in two newspapers in the terms
given in the following columns, we should know something about the
physical events but also something about the value selectivities of the
reporters of the events:

1. Mr. William Bellanca, prom- la. Mr. William Bellanca, prom-
inent airplane designer, was inent Italian-born airplane de-
held up last night by an un- signer, was held up last night
identified Italian gangster. by an unidentified gangster.

2. Three American workers were sa. Ten native townspeople were
fired to make room for Jewish given permanent employment
refugees at the hat factory in by a Jewish refugee in his hat
Mudville last month. factory in Mudville, and three

other local residents were given

8. Collected Legal Papers (1921), p. 126.

LOGIC, LAW, AND ETHICS

temporary employment pend-
ing the arrival of members of
the owner's family who have
been held in concentration
camps for seven years.

The selectivity operation that we execute when we hold up one
decision as precedent for another decision will, in general, expand the
force and scope of those decisions that we agree with; at the same time
it will restrict the force and scope of decisions that we think wrong and
ill-advised. In dealing with decisions that we approve of we will gen-
erally, consciously or unconsciously, stress the broad principles of justice
enunciated in the case. The decisions we disapprove of we may seek
to restrict to "the facts of the case as it was actually decided," which is
a politely circuitous way of saying that we would not give the decision
any weight at all in any later case.9 But we do not have to go so far
in order to free ourselves from the incubus of an apparent precedent.
We are bound to find some points of difference, which will grow in im-
portance as we reflect on the harm that would be done by ignoring
these points of difference and applying an old decision to the situation
now before the court. And so we generally end up our briefs and argu-
ments as lawyers, or our opinions as judges, with a stronger conviction
of the justice of our result than we had when we started our search.

Llewellyn has written of the ways in which the precedent-value of a
case increases or diminishes, of the "minimum value" and "maximum
value" of a precedent, and of the techniques for "getting rid of prece-
dents deemed troublesome . . . and making use of precedents that seem
helpful." 10 Oliphant has offered the analogy of an infinite pyramid in
which a case may "stand for" broader or narrower principles depending
upon how far up or down the ladder of abstraction we move in handling
the case.11 Both these analogies are helpful, though they inevitably
oversimplify the problem. What is important to recognize is that the
shape of a precedent, as well as its size, will vary with the selectivity-
grid through which it is viewed. One side of the precedent may grow
while the opposite side shrinks. And a series of cases which looks like a
straight line from one value standpoint may look like a very crooked
stick from another.

If these variations in the shape and force of a precedent were com-
pletely unpredictable, law would have all the uncertainty that Jerome

9. Llewellyn, The Bramble Bush (1930), p. 63.

10. Id. at 65-66.

n. Oliphant, "A Return to Stare Decisis" 6 Am, L, School Rev, si*j, »!7-i8 (1928),

FIELD THEORY AND JUDICIAL LOGIC

Frank thought it had before he became a judge. But the fact is that
we do know something about the selectivity patterns of most judges
which shape the line of development of any precedent. In fact a very
important part of the process of selecting judges is devoted to the elimi-
nating of judges with disrespectable or unpredictable value patterns.
When we find a marked judicial shift in value judgments, as in Chief
Justice Hughes' and Justice Roberts' opinions in the first Labor Board
cases,12 we can tell that other precedents in many other fields of law will
thenceforward cease to be precedents because a new value-attitude has
been taken (though not expressly formulated) with respect to social
legislation.

According to traditional judicial logic, every precedent moves in a
straight line, imparting its direction to every case that gets in its way.
In fact, however, we find that the force and direction of a precedent
vary with the field in which it is observed. We are not now, and probably
never will be, able to predict the path of a precedent with absolute
certainty. No more can we always, with complete assurance, predict the
path of a merely physical object. But at least we know that information
about the weight of the object and its direction and velocity at a given
point would be relevant to our prediction. So, too, we know something
about the relevant factors in plotting the path of a precedent. We know
that the line of motion of any precedent is subjected to a special pull
that skews it whenever it passes near a point of high value tension. A
series of precedents that shows a straight line when the judgments range
from $1,000 to $100,000 may swerve pretty sharply when a case involves
a twenty million dollar judgment against a government or other public
institution that cannot make such a payment without serious public
repercussions. Precedents that point to the protection of civil liberties
may suddenly dwindle in times of public hysteria,13 but after the hysteria
subsides they may resume their original force and direction.

In all this interaction of events with surrounding value fields we have

12. NLRB v. Jones 6* Laughlin Steel Corp., 301 U.S. i (1937); Associated Press v.
NLRB, 301 U.S. 103 (1937); Washington V. and M. Coach Co. v. NLRB, 301 U.S. 142

(X937)-

13. The attitudes towards Mormonism that prevailed in the i88o's are attitudes that
most of us can easily recognize as hysterical because we do not share them today. The
Supreme Court decisions which upheld elimination of Mormons from public office,
their disfranchisement, and the confiscation of Mormon Church property justified
these punitive measures on the ground that certain teachings of Mormonism were a
"nefarious . . . blot on our civilization . . . contrary to the spirit of Christianity."
Mormon Church v. United States, 136 U.S. i, 49 (1890). Under the impact of this atti-
tude the Supreme Court maintained that religious freedom comprised only freedom
of inner beliefs and did not extend to "practices" or "propaganda." Reynolds v. United

LOGIC, LAW, AND ETHICS

the kind of problem with which field theory in physics has grappled
for some decades. Is it not conceivable that the forms of analysis that
have proved useful in the world of physics may likewise prove illum-
inating in the world of law?

The guiding thread in Einstein's general theory of relativity is the
hypothesis "that the space-time structure, though normally flat, would
become warped in the neighborhood of matter. It was this warping which
was responsible for the presence of a gravitational field in the ordinary
sense/' 14 From this assumption, physicists have derived a method of
procedure: "Thus, when we wish to determine the path and motion, say,
of a planet we first determine the space-time curvature around the sun
and we deduce therefrom the lay of the geodesies (straightest lines). The
world line of the planet will then lie along the geodesies corresponding
to the initial position and velocity of the planet." 15

The absolute space of unchanging rules and unmoving precedents
that characterized traditional jurisprudence is gone. In its place we
have a "life space" 16 with many "value regions." Whatever passes
from one region to another, — a rule, a precedent, or a statement of
facts — changes its weight, its shape, and its direction in accordance
with "the lay of the geodesies" of that region. Some of these regions
we are aware of; others we still need to explore.

The egocentric distortion we all recognize, at least in others. We
say that no man should be a judge in his own cause. But we still allow
judges to decide whether they are themselves prejudiced. And few of us
have any qualms when we judge ourselves. The facts that we dislike
we call theories; the theories that we cherish we call facts. And yet,
because we recognize the egocentric distortion, and are able to laugh at
it, and to discount it, most of us outside the asylums manage to live in
a world that is not purely private. In fact, the small-scale distortions

States, 98 U,S. 145 (1878); Dams v. Beason, 133 U.S. 333 (1890). In other words, legisla-
tion commanding religious persecution is upheld, so long as it singles out its victims
by means of some observable fact in their speech, ritual, or conduct, and does not limit
itself to their private and secret thoughts. F. S. Cohen, "Supreme Court and Religious
Liberty,'* 4 Jewish Frontier 6 (July, 1937). And note the shift between June si, 1943 and
December 18, 1944, in the Supreme Court's attitude towards legislation singling out per-
sons of Japanese ancestry for confinement. See Hirabayashi v, United States, 320 U.S.
Si (1943); Ex part* Endo, 333 U.S, 283 (1944); and cf. Rostow, "The Japanese American
Cases—A Disaster/* 54 Yale L.J, 489 (1945); F. S. Cohen, "The Civil Rights Report,"
5 ETC. 161 (1948).

14. D'Abrot, The Decline of Mechanism in Modern Physics (1959), p» 8t.

15. Id. at 85,

16. Cf. K. Lewin, Principles of Topological Psychology (1956).

»34

FIELD THEORY AND JUDICIAL LOGIC

that center about the life space of each individual tend to cancel each
other in any long-range movement. They are thus less serious, from
the standpoint of the legal order, than the group distortions, ethnic,
national, and economic, which reinforce each other and thus powerfully
affect all large-scale movements in the social world.

Large-scale social facts cannot be explained in terms of the atomic
idiosyncrasies and personal prejudices of individuals. Lines of prece-
dent are large-scale social facts involving large numbers of individual
judges and litigants. That is why the "belly-ache" theory of judicial
decisions can never explain how any rule of law comes into being or
changes in time. And that is why a realistic view of the role of prece-
dents requires an exploration of group-reinforced value patterns. Such
an exploration might explain many facts on which the ceremonial
rules of traditional jurisprudence throw no light — for example the fact
that the judges appointed by a given administration uphold the validity
of the activity of that administration in not less than ninety-six per
cent of the cases in which it is challenged. So, too, such an exploration
might indicate how it happens that when anybody enters the life
space of a public office, bringing to it a certain momentum and energy,
the life space of the office will impose its geodesies upon him: he will
ask for more appropriations, seek increased power for his office, adopt
certain protective attitudes towards his assistants. At the same time, those
directions of his activity that are peculiar to himself are likely to cancel
out against the opposing directions of his successors, colleagues, and
predecessors in office. Just so, the man who dons the judicial robe with
the greatest contempt for precedent finds that the pressure of his office-
space compels him to follow paths that, from outside the office-space,
once appeared absurd.

It would be tedious to multiply examples of the ways in which un-
avowed value patterns— particularly group value patterns — direct the
flow of events in the space we call law, It is enough to see that we can
reject the old idea of straight lines of precedent filling absolute legal
space, without surrendering to chaos or impressionism. Relativity also
has its laws, its certainties, and its demanding quests for verifiable fact.

Causation: Physics and Practical Politics

Some form of causation is involved in every law suit. For every
plaintiff claims that somehow the defendant has caused him to suffer
and for that reason should be subjected to the strong arm o£ the law.
One might expect, therefore, that after so many centuries of litigation

135

LOGIC, LAW, AND ETHICS

jurists would have a pretty clear idea of what causation really is. The
fact remains, however, that jurists have ordinarily conceived of "causa-
tion" as a problem of natural science and have therefore studiously
refrained from inquiry as to its significance.

On the other hand, natural scientists have decided in recent years
that causation has no proper place in their studies, that in fact "cause,"
its Latin progenitor "causa" and its Greek prototype ama, are all
words borrowed from the law courts, which crept into physics on the
coat tails of the dignified Stoic theory that the physical world is run
like a legal system, under "laws of nature." 17 Today physicists are
pretty generally agreed in rejecting as invalid the explanation that
gravitation is the "cause" of an apple's downfalling. Gravitation is
nothing but a highly abstract way of stating the fact that apples and
many other things do fall. Insofar as the idea of "cause" carries with
it an anthropomorphic or animistic sense of pushing and pulling, it has
no proper place in modern physics. Functions and equations have
displaced "cause and effect" as the basic terms of physical explanation.
The trend of scientific physics is being reflected today, more or less
promptly, in every other science.

Where does this leave the jurist? If "cause" is banished from law,
will lawsuits be banished also? Or can we refine the concept of causation
and hold on to it in the law even though all other sciences reject it?

According to the orthodox view, whether event A is the cause of
event B is a question of objective fact to which all value judgments are
irrelevant. What, then, we may ask, is the cause of the injury when a
plaintiff and his car have been smashed up by defendant's car? The
location and speed of the defendant's car certainly contributed to the
accident. So, too, did the location and speed of the plaintiff's car; if
plaintiff had stayed in bed instead of driving, he would not have been
hurt. Relevant also are the durability and tensile strength of the two
cars, the width of the road, the character of the road-surface, the weather,
and a host of other more or less important facts. How can we possibly
pick out one of these facts, or any combination of them, and say:
"This was the cause of the accident?" Certainly there is no rule of
physics, no rule of engineering, and no rule of logic that will enable us
to reach such a result.

What do we actually do? If it turns out that plaintiff was driving on
the right side of the road and that the defendant was driving on the
left side of the road, we say that the defendant's driving on the left
side was the cause of the accident, unless the case arises in England, in

17. See M. R. Cohen, Th€ Meaning of Human History (1947), p. 95.

FIELD THEORY AND JUDICIAL LOGIC

which case we say that the plaintiff's driving on the right side was the
cause of the accident. From the standpoint of logic or physics the
physical collision of the cars had exactly the same physical antecedents
whether the collision occurred in England or in America. But from the
standpoint of the law, the judgment of "wrongness" or "carelessness"
is an essential part of the judgment that attributes the cause of the
accident to some human act. Without such standards, we should find
in every accident only the intersection of an infinity of strands of oc-
currences reaching back into the past without end.

What we actually do when we look for a legal cause is to pick out of
this infinity of intersecting strands a useful point at which public
pressure can be placed.18 We pick one point rather than another because
we think the imposition of pressure at that point will tend to bring
about either a better course of conduct on the part of defendants or a
fair measure of relief for plaintiffs. What we will take to be the cause
of an accident, then, is not determined entirely by the objective facts.
The standards of conduct applied to the situation are an integral part
of any judgment of legal causation.

In this, the law does not differ essentially from other social fields.
When one man finds the cause of high prices in high profits, another in
high wages, and a third in high taxes, we recognize that three different
value patterns are being applied to the same set of facts. That, perhaps,
is why statistical facts and figures seldom sway anybody's viewpoint
in such a controversy. When we meet a man who feels that all his
efforts are constantly being thwarted by the connivings and conspiracies
of other people, we recognize that such a person's ascriptions of causal
efficacy may be powerfully affected by a private system of values. If he
tells us that all his failures are the result of Catholic conspiracies, or
a conspiracy of publishers not to publish his works, we learn a little
more about his own set of value judgments, even though we may learn
very little about Catholics or publishers. So, too, if a writer tells us in
May of 1941 that the cause of World War II is British imperialism
and tells us, a few weeks later, that the cause of World War II is Nazi
aggression, we may not learn much about World War II, but we do
learn something about the "line" of our writer. Indeed we generally
learn a good deal more about other peoples' value standards from the

18. "A cause, but not the proximate cause. What we do mean by the word 'proximate'
is, that because of convenience, of public policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain point. This is not
logic. It is practical politics." Andrews, J., dissenting in Palsgraf v. Long Island
248 N.Y. 339, 162 NJE. 99 (1928).

LOGIC, LAW, AND ETHICS

statements they make about causal relations than we do from their
explicit formulations of value standards. The acquisition of similar
knowledge about our own unavowed value standards is a more painful
process.19

The intimate dependence of causality judgments upon value standards
is evident in the work of those historians whose value judgments differ
from our own. As Morris R. Cohen points out in The Meaning of
Human History,

In effect [most historians] select from the vast conglomerate of
determinants which form the necessary and sufficient conditions of
a given event some element or elements to which they attach special
importance and this they call "the cause/* classifying all other ele-
ments as "conditions."

Now, though it is perhaps inevitable that historians, like other
human beings, should see causal relationships through a screen of
human values that gives importance to some antecedents and rele-
gates others to obscurity, it is not inevitable that historians should
fail to recognize that this is what they are doing. Indeed if the role
which value judgments play in determining our opinions as to his-
torical causation were more clearly understood, we should have less
difficulty in understanding how historians who agree on measurable
facts so often disagree in tracing the causal relations between them;
how, for instance, the decline of Rome can be attributed by equally
conscientious and intelligent historians working from a common
fund of historical data to such diverse factors as the exhaustion of
soil, the corruption of rulers, the rise of Christianity, spots on the
sun, and population movements in central Asia. At the same time
we might be more cautiously skeptical of the moral lessons drawn
from history by historians who fail to disclose the moral presupposi-
tions with which they embarked on the task of historical explana-
tion. For few historians have recognized, as did Darwin, that facts
which do not fit into our theories make less of an impression on us
than those that do, or have made a sustained effort, as Darwin did,

19. "We may often find it easy to indicate approximately on what properties of an
object our liking or disliking is founded. But we do not realize with the same clearness
on what characteristics of our own self these attitudes depend. For this reason it is,
and often remains, so difficult to understand certain valuations of others, for example
in the field of art or in that of sex/' Kohler, The Place of Value in a World of Facts
(1938), p. 339-

FIELD THEORY AND JUDICIAL LOGIC

to give special note to those facts that fail to fit into preconceived
patterns. Indeed the field of history is so much more complex than
that of biology that it is doubtful whether any efforts to make al-
lowances for our own value systems in the writing of history can
ever be completely successful. But the historian can make a con-
tribution to intelligent understanding and to the scientific objectiv-
ity that transcends national boundaries, racial loyalties, and class
interests, by setting forth, as a good map-maker does, his own
magnetic deviations and perspectives.20

That judgments of causality vary with the standpoint of the observer
has come to be widely recognized during recent decades, in scientific,
legal, and philosophical circles.21 Consider, for example, the very prac-
tical question: What is the cause of malaria? In the history of science,
various answers have been given to this question:

The ancients found a correlation between exposure to damp air,
especially at night, and malaria. It was an essential task of biology
and medical science to ask why these two should be thus connected.
An intermediate term was found in the bite of certain mosquitoes.

20. M. R. Cohen, The Meaning of Human History (1947), pp. 113-15.

21. "Thus the cause of death, for example, will depend upon the principle of selec-
tion employed by the reporter. It will be moral or legal for one observer, physiologic
for another. And even to the physician the cause will be heart failure, local infection,
or some other pathological condition, according to his point of view. Thus certain
causes appear more often at certain times than at others. Greater attention, for ex-
ample, is now paid to heart disease, and peritonitis almost disappears because of the
appearance of appendicitis. So, likewise, if a glass breaks when it falls, I can say that it
breaks because it was dropped, or because it is made of brittle material, or because it
slipped from my nervous hand. But any one of these conditions is part of a system or
perspective. In each perspective the relation is determinate." M. R. Cohen, The Mean-
ing of Human History (1947), pp. 96-97.

And see R. B. Haldane, The Reign of Relativity (1921), pp. 121-22:
"Cause is a very indefinite expression. Externality to the effect is of its essence,
but its meaning is relative in all cases to the subject-matter. For the housemaid the
cause of the fire is the match she lights and applies. For the physicist the cause of the
fire is the conversion of potential into kinetic energy, through the combination of
carbon atoms with those of oxygen and the formation of oxides in the shape of gases
which become progressively oxidized. For the judge who is trying a case of arson it
is the wicked action of the prisoner in the dock. In each case there is a different field
of inquiry, determined from a different standpoint. But no such field is even approxi-
mately exhaustive. . . . Thus we see that when we speak of the cause of an event we
are only picking out what is relevant to the standpoint of a special inquiry, and is
determined in its scope by the particular concept which our purpose makes us have
in view."

LOGIC, LAW, AND ETHICS

But why should the bite of the mosquito produce the given result?
Again an intermediate term is found in the virus that is injected
into the organism by the bite. But why should that virus destroy
the red blood corpuscles? It is obvious that no matter how many
middle terms are thus interpolated we still have a discrete series,
and the question why two terms should be causally connected re-
mains. This is, of course, no objection to a process which extends
our knowledge even though it never can be absolutely completed.22

Clearly, for the sanitary engineer, the existence of untreated swamps is
the cause of malaria. For the king's attendant with the palm-leaf fans,
the bite of the mosquito is the only relevant cause. For the pathologist,
the effect of the malaria virus upon red blood corpuscles is the cause.
In each case the cause is the point at which effort can be usefully applied.
At least two great American judges, Benjamin Cardozo and Henry
Edgerton, have clearly recognized that in law, as elsewhere, judgments
of causation are essentially relative and purposive. Thus Justice Cardozo,
after noting the infinity of antecedents that come together in any event
we seek to explain, observes:

From this complex web the law picks out now this cause and
now that one. Thus the same event may have one jural cause when
it is considered as giving rise to a cause of action upon contract,
and another when it is considered as giving rise to a cause of action
for a tort. The law accepts or rejects one or another as it measures
its own ends and the social benefits or evils of rejection or acceptance.

A case will point my meaning. A fire occurred at Big Tom, New
Jersey. The fire exploded dynamite. The explosion by its vibrations
caused damage to a vessel standing out in the river half a mile
away. A policy of insurance secured the owner of the vessel against
loss proximately caused by fire. The court assumed that by the
law in most jurisdictions the fire would be the jural cause if the ac-
tion were in tort against a wrongdoer who had negligently spread
the flames. Indisputably it would if he had acted with intent to
cause the very damage that resulted. On the other hand, the court
refused to find that the fire was the jural cause within the meaning
of the contract.

The reasoning that led to this conclusion is in close approach to
Lord Haldane's, though rendition of the judgment preceded by
some years the publication of his book. "In last analysis," we said,
"it is something in the minds of men, in the will of the contracting
parties, and not merely in the physical bond of union between
ts. M. R. Cohen, The Meaning of Human History (1947), pp. 105-06.

140

FIELD THEORY AND JUDICIAL LOGIC

events, which solves, at least for the jurist, this problem of causa-
tion. In all this, there is nothing anomalous. Everything in nature
is cause and effect by turns. For the physicist, one thing is the
cause; for the jurist, another. Even for the jurist, the same cause is
alternately proximate and remote as the parties choose to view it.
A policy provides that the insurer shall not be liable for damage
caused by the explosion of a boiler. The explosion causes a fire. If
it were not for the exception in the policy, the fire would be the
proximate cause of the loss and the explosion the remote one. By
force of the contract, the explosion becomes proximate. A collision
occurs at sea and fire supervenes. The fire may be the proximate
cause and the collision the remote one for the purpose of an action
on the policy. The collision remains proximate for the purpose of
suit against the colliding vessel. There is nothing absolute in the
legal estimate of causation. Proximity and remoteness are relative
and changing concepts/' 23

Probably the most precise formulation of the value-orientation that
is implicit in every judgment of causation is that given by Judge
Edgerton in his epochal article on "Legal Cause." 24 The painstaking
analysis of cases and materials in that article exposes the emptiness of
all efforts to define "cause" or "proximate cause" in terms simply of
time, space, and mechanics and without reference to values. Judge
Edgerton's thesis is best summarized in his own words:

A wrongful act or omission has occurred, a harm has been suf-
fered. Will the law treat the one as the cause of the other? My
thesis is that it neither is nor should be possible to extract from the
cases rules which cover the subject and are definite enough to solve
cases; that the solution of cases depends upon a balancing of con-
siderations which tend to show that it is, or is not, reasonable or
just to treat the act as the cause of the harm — that is, upon a bal-
ancing of conflicting interests, individual and social; that these
considerations are indefinite in number and value, and incommen-
surable; that legal cause is justly attachable cause. I believe that,
while logic is useful in the premises it is inadequate; that intuition
is necessary and certainty impossible.

The fact that the rules of legal cause are intended to produce
a just result, rather than to save time or avoid uncertainty, is em-
phasized by the attitude of the law towards what may be called

23. Cardozo, Paradoxes of Legal Science (1928), pp. 83-85.

24. 72 U. of Pa. L. Rev. 211, 343 (1924),

141

LOGIC, LAW, AND ETHICS

alternative causes; i.e. causes each of which, without the con-
currence of the other, would have been sufficient to produce the
result. In general, "a defendant's tort cannot be considered a legal
cause of plaintiff's damage, if that damage would have occurred just
the same even though the defendant's tort had not been com-
mitted/' [*]

But, by exception "where two tort-feasors are simultaneously
operating independently of each other, and the separate tortious
act of each is sufficient in and of itself to produce the damaging
result," each is liable.f2] It would be shocking to our sense of justice
to relieve two wrongdoers of liability on the ground that both are
responsible.

Today it is perhaps no longer necessary to argue that judgments of
causation in the law are relative and changing. The real question is
how they change. Can we plot out the ways in which changing judg-
ments of purpose and value will lead courts to shift the directions in
which they seek to trace chains of causation?

It is when we face the problem of how judgments of causality vary
that the physical analogy of a field of forces becomes helpful. Such an
analogy may indicate that just as precedents shift in direction when
they enter a neighborhood of high value tension, so judgments of
causality will undergo a similar shift in direction. Generally, the
direction shift, whether of precedent connection or of causal connection,
will be such as strengthens and reinforces the basic valuations in the
field. Precedents which support our objectives grow; precedents that
appear to others to be against us drop away. Causal connections which
support our objectives are strengthened; those that threaten them drop
away. Thus, increasing sympathy for the victims of industrial ac-
cidents will bring about a broadening of the field within which causation
for such accidents is found in some act of an employer who is able to
provide some measure of compensation.25 Similarly, increasing fear
of Communism (or, in a Communist society, of anti-Communism) will
expand the field in which responsibility for industrial stoppages and
breakdowns is ascribed to Communist (or anti-Communist) propaganda.

All of us, in everyday life, when we attribute causality to anybody or
anything, do so through a highly selective value-screen. Most of us,
for example, in thinking about accomplishments of which we are

[i], Smith, "Legal Cause in Actions of Tort/* 25 fiarv. L. Rev. 303, 31* (191 s).
[*]. Ibid.
25. See Charmont, Le$ Transformations du Droit Civil (191$), c. 55.

FIELD THEORY AND JUDICIAL LOGIC

particularly proud, attribute the cause of our success to our foresight,
perseverance, hard work, or other admirable qualities. Even if we are
too modest to talk aloud in these terms, these are the terms in which we
generally think. On the other hand, in thinking about our failures, we
commonly find that they were brought about by some action of third
parties, some accident of the weather, or something else external to
ourselves. When we view the works of others, we are more likely to
attribute their successes to external circumstances such as inherited
wealth, parental care, educational opportunities, and good fortune in
health, unless those we are judging are persons whom we particularly
love or respect. So, too, we are more skeptical towards others than we
are towards ourselves or our dear friends when it comes to excusing
failures and misdeeds by attributing them to the intervention of ex-
ternal causes. Concisely, we may say that "causality" is a value-weighted
term. The person we admire is viewed as active in the events we admire
and as external or passive in events we condemn, which are then viewed
as the product of external circumstance. With persons we despise or
hate, success is normally attributed to environmental factors for which
they can claim no credit, and failure is traced to the person judged.26

The skewing of causal judgments by high-value and low-value orien-
tations is particularly noticeable in a society with value standards radi-
cally different from our own. For example, Communist Russians will
attribute all the great achievements of the United States to facts for
which its citizens are not responsible, e.g. supposedly unparalleled
natural resources, separation by oceans from powerful neighbors, the
contributions of Europe in man-power and idea-power, the role of Rus-
sian battleships in preserving the Union and the role of Russian armies
in saving America from German invasion in the first and second World
Wars. On the other hand, those aspects of American life which may be
held up to international contempt (e.g. lynching, racial segregation, or
backwardness in music or chess) are never linked with external causal
factors but always attributed to the inherent vices of the American way
of life. In our own judgments of ourselves an opposite skewing may be
observed by any impartial observer.

When two people in a law court blame each other for an accident
they are simply behaving like human beings. The function of a law
court is not to eliminate all the personal value-tones that lead individ-
uals to draw causal lines one way or another but rather to apply a

26. The shifting lines we draw between an individual and his environment mark
the outlines of the problem of civil and criminal responsibility. See F. S. Cohen,
"The Socialization of Morality" [below, p, 337].

LOGIC, LAW, AND ETHICS

more comprehensive set of values and to achieve a more comprehensive
view of the facts as a guide for social action.

From this analysis a number of inferences can be drawn concerning
the disposition of actual cases, and by testing such inferences against
the facts we can hope to illumine the validity of this analysis. Such a
task must lie beyond the limits of the present essay. But perhaps it is
significant to formulate the following hypotheses:

1. The more reprehensible the conduct, the more readily will judges
find a causal connection between the conduct and the injury com-
plained of.27

2. The more hateful the defendant, the more readily will judges
find a causal connection between the defendant and the injury
complained of.28

3. A judgment against a highly respected citizen has a larger prece-
dent value than a judgment against a despised person; con-
versely, a judgment in favor of a despised person has a larger
precedent value than one for a pillar of society.29

4. A value differential in attitude of judge and jury towards a given
class will be reflected in differences of judgment as to whether
individuals of the given class are responsible for the wrongs com-
plained of.30

27. Compare Bacon's statement of the point:

" 'In jure non remota causa, sed proxima spectatur.' It were infinite for the law to
judge the causes of causes, and their impulsions one of another; therefore it con-
tenteth itself with the immediate cause, and judgeth of acts by that, without looking
to any further degree. . . . This rule faileth in covinous acts, which though they be
conveyed through many degrees and reaches, yet the law taketh heed to the corrupt
beginning, and counteth all as one entire act. ... In like manner, this rule holdeth
not in criminal acts, except they have a full interruption; because when the intention
is matter of substance and that which the law doth principally behold, there the first
motive will be principally regarded, and not the last impulsion." Bacon, Maxims of
the Law, Regula. I,

28. Consider the probability of securing a fair trial of a murder charge against
foreign-born anarchist workers by a judge who refers to the defendants before him
as "those anarchistic bastards." See Fraenkel, The Sacco-Vanzetti Case (1931)' P- 542-

29. "[O]ur democracy entrusts the task of maintaining its most precious liberties
to those who are despised and oppressed by their fellow men." F. S. Cohen, "Indian
Rights and the Federal Courts" 24 Minn. L. Rev, 145, 200 (1940),

30. Consider, for example, the repeated decisions of juries that the famous financier
Russell Sage was partly responsible for injury to a visitor whom he used as a shield
against a bomb, which decisions were repeatedly set aside by judges who could ace no
connection between the financier's conduct and the injury to his visitor. Latdlaw v.
Sage, 158 N,Y. 73, 52 N.E. 679 (1899).

144

FIELD THEORY AND JUDICIAL LOGIC

II. PUBLIC POLICY: A FIELD THEORY OF VALUES

Public Policy vs. The Law

"Public policy" has been traditionally viewed as an emergency factor
upon which an attorney may call when the cases and statutes are against
him, and to which a judge may look when the law has been rendered
sufficiently unclear by advice of counsel. On the basis of such a view
of "public policy" a spirited controversy has raged for many decades
over the issue whether "public policy" is a proper ground for striking
down a rule of law or a line of precedents.31 But in reality the issue
between law and public policy is chiefly rhetorical. Every rule of law,
every interpretation of a statute, every standard of what a "reasonable
man" would do or say or believe or approve, every line of precedents,
every view of what any decided case "stands for," always presupposes
one view or another as to "public policy."

What facts in a case are important when the case is being decided,
and what facts are important after the case has been decided and when
it is cited as a precedent? These are questions that cannot be answered
without criteria of importance. And every judgment of importance im-
plies a judgment of value or public policy. Without judgments of public
policy there can be no rules, no precedents, but only endless, fathomless,
systemless, collections of individual cases, each case sufficient to itself
and bearing no important resemblance to any other case.

Of course, most judges, like most human beings, see their own views
of public policy not as policy views but as eternal truth, the spirit of the
common law, the basic principles of Anglo-American liberty, or, more
simply, as the law. We see other people's eyes; but we never see our
own. We see other people's prejudices; our own prejudices we view
as the teachings of experience. If we ever come to see our own views as
prejudices, they have, by that token, ceased to be prejudices and have
become hypotheses to be examined and confirmed or rejected. So it is
with metaphysics. Judges and non-judges who denounce metaphysics
do not thereby escape from metaphysics. Nor do they establish the truth
of their own metaphysical assumptions. All they establish is their un-
awareness of their own basic assumptions.

There is a special reason why most judges will not willingly uncover,
even in the privacy of judicial chambers, their basic valuations. For

31. An excellent analysis of this controversy is given in Stone, The Province and
Function of taw (1946), pp. 494-504.

LOGIC, LAW, AND ETHICS

the custom of the realm and the defense of the status quo require
that judges should appear to be unsusceptible to the wayward gusts
of human emotion. The law is supposed to be objective, impersonal,
and firmly grounded in the indubitable. On the other hand, everybody
knows — especially judges and lawyers and law professors — that men's
views of what is good and bad vary atrociously from place to place
and from year to year. And so, as Holmes told us many years ago,

Perhaps one of the reasons why judges do not like to discuss ques-
tions of policy, or to put a decision in terms upon their views as law-
makers, is that the moment you leave the path of merely logical
deduction you lose the illusion of certainty which makes legal
reasoning seem like mathematics. But the certainty is only an il-
lusion, nevertheless.32

The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course, consideration of what
is expedient in the community concerned. Every important princi-
ple which is developed by litigation is in fact and at bottom the
result of more or less definitely understood views of public policy;
most generally, to be sure, under our practice and traditions, the
unconscious result of instinctive preferences and inarticulate con-
victions, but none the less traceable to views of public policy in the
last analysis.33

I think that the judges themselves have failed adequately to
recognize their duty of weighing considerations of social advantage.
The duty is inevitable, and the result of the often proclaimed judi-
cial aversion to deal with such considerations is simply to leave the
very ground and foundation of judgments inarticulate and often
unconscious.34

Perhaps the judicial blindness that Holmes criticized is really pro-
tective. Perhaps value judgments which are inarticulate and unconscious
are less easily criticized than those which are frankly avowed. If this
be so, then it will be necessary for those who seek to achieve a critical
and comprehensive view of the law in action to ferret out the judicial
value patterns that underlie decisions.

32. "Privilege, Malice and Intent/' 8 Harv. L. Rev. i, 7 (1894); Collected Legal
Papers (1921), p. 126.

33. The Common Law (1881), pp. 35-36.

34. "The Path of the Law/' 10 Haw. L. Rev. 457, 467 (1897); Collected Legal Papers
(1921), p. 184.

146

FIELD THEORY AND JUDICIAL LOGIC

In that task it is not enough to classify cases. There are always an
infinite number of ways in which any pile of decisions may be classified.
Psychoanalysis has not yet produced any useful techniques for predicting
judicial decisions. The "breakfast theory" of judicial behavior advanced
by Beccaria almost two hundred years ago as a reason for reducing the
realm of unbounded judicial discretion,35 has not yet revealed any
correlation between bananas or dyspepsia and the law of sales. This
far, however, we have advanced. The old slot-machine or phonograph
theory of the judicial role is dead. No thoughtful student of the law
today denies the role that is played in the judicial process by judicial
value standards. Not for a good many years has the American public
accepted a "leader of the bar" as a justice of its Supreme Court. Public
scrutiny of the social views of each nominee to that court has become
the rule, and the rule is likely to be extended to all of our high courts.
It is desirable that the methods by which the value standards of a judge
are scrutinized shall become more scientific.

A scientific approach to the analysis of judicial value patterns requires,
in the first place, that we distinguish between pure judgments of value
and mixed judgments of value and fact. Pure value judgments, e.g. that
happiness is an intrinsic good, represent a highly abstract form of thought.
We may find such judgments in text-books of ethics; almost never do
we find them explicitly set forth in a judicial opinion. To find a judge's
value patterns by looking for his explicit judgments of intrinsic value
is therefore a hopeless quest.

Ordinarily, value judgments are implicit in opinions which include
many elements that are not at all dependent upon our ethical views.
If we think that democracy is preferable to despotism, it is because we
think that democracy has certain implications and consequences which
make for a better level of human life than is consistent with despotism.
But whether any specific consequences actually flow from a democratic
order is a question of historic fact on which it is possible to gather evi-
dence that does not depend upon our wishes. This does not mean that
historical analysis will ever prove the value of any form of government.
But it may clarify the complex to which we apply a value judgment.

So, too, when we characterize the behavior of an individual as brave
or rash, discreet or cowardly, heroic or quixotic, generous or foolish,
persistent or pig-headed, we have imported into a psychological analysis
of human conduct elements of moral valuation.

These value elements can be identified and analyzed only if we adopt
an operational view of valuation. In such a view, the meaning of a value

35. Beccaria, Essay on Crimes and Punishment (1764), c. 4.

147

LOGIC, LAW, AND ETHICS

standard is to be found in its actual and possible applications. Towards
such a view of values the field theory of modern physics provides an
illuminating analogy and guide. Concretely, we can expect to find the
value standards of a judge in his reactions to day-to-day problems of
statutory construction, the weight of precedents, standards of "reasonable
care" or "due process," and causation. We find the value patterns of a
judge, as of any other human being, in the choices he makes between
competing interpretations of fact, in the selection of value-charged words
to describe given facts, and in the implicit and inarticulate premises of
his arguments*

The Inarticulate Moral Premise

Every judicial opinion is, in some sense, an effort to defend or justify
some decision, actual or possible. The conclusion that a certain decision
is right can only follow from an argument if the argument includes
one or more premises as to what is right or wrong. For reasons often
noted, judges commonly do not make such premises explicit. Neverthe-
less a logical analysis of any judicial argument can generally uncover
the suppressed premises.

Take, for example, the decisions of the United States Supreme Court
in United States v. Joseph™ and in United States v. SandovaL™ Both
cases involved the question whether the people of the Rio Grande Pueblos
were or were not Indians. In the former case, the Supreme Court noted
that "Integrity and virtue among them is fostered and encouraged. . . .
In short, they are a peaceable, industrious, intelligent, honest, and vir-
tuous people." The Court concluded that these people were not Indians,
and therefore not entitled to the protection of federal laws prohibiting
trespass upon Indian lands. In the Sandoval case, the Court accepted
evidence supplied by the Bureau of Indian Affairs to the effect that
the Pueblos indulged in "a ribald system of debauchery," "cruel and
inhuman punishment" and "immorality and a general laxness in regard
to their family relations." From these and other similar characterizations
the Supreme Court concluded that the Pueblo villages are really Indian
communities after all and that its earlier decision in the Joseph case
was erroneous. The moral premise underlying both decisions is obvious
but, for reasons of politeness or otherwise, it was left unexpressed: "In-
telligent, honest, and virtuous people" cannot be Indians, but debauch-

36, 94 U.S. 614 (1876),

37, 231 U,S. 28 (1913).

148

FIELD THEORY AND JUDICIAL LOGIC

ery, cruelty, inhumanity, and immorality are prima facie evidence of
Indianhood.

Word Selection as an Index of Value Judgments *

All of us, when we communicate with our fellow human beings, are
continually faced with the necessity of choosing between words similar
in import but dissimilar in value tone. Shall we, for example, refer to
the Secretary of Agriculture as a statesman, a politician, or a bureaucrat?
Each of these terms may refer to exactly the same activities, and so the
choice of one term over the others does not affect the informative value
of what we say. Nevertheless, the choice embodies a value attitude. If the
person to whom we are speaking is sympathetic and receptive, we may
convey our attitude to him without his knowing how it has been con-
veyed. On the other hand, if the person to whom we are talking is alerted
to the human significance of word-selection, he may learn much more
about the speaker than he learns about the subject of his speech.

Whether a man speaks of "colored folk" or "Negroes" or "niggers," of
"Japanese" or "JaPs>" ojf "men and women of Jewish descent" or "Jews"

or " Kikes," does not alter the factual content of his communication,

but all who are sensitive to such choices recognize the value standards
that lie behind them — even when the speaker himself does not.38 Here,
then, is a ready indicator of value judgments which should be as ap-
plicable to judges as to any other human beings.

Cases involving race-value judgments or class-value judgments are par-
ticularly rich in such unconscious indications of judicial value-attitudes.
Thus, for example, the pattern of race-values to which the Joseph and
Sandoval cases point is strongly confirmed by the word-selections in
statutes and judicial opinions dealing with Indian rights. In many cases,
for example, the courts will apply to Indians terms that are ordinarily
applied to animals, thus conveying the impression that the relation of an
Indian to his land is similar to that of an animal to its habitat and there-
fore not a subject of enforceable rights. Thus, while a white man "travels'1
or "commutes," an Indian (like a buffalo) "roams." A white man may

38, See Thouless, How to Think Straight (1948), pp. 3-19; Hayakawa, Language in
Thought and Action (1949), pp. 42-51, 84-92.

* [Ed. note: Amplified in "The Reconstruction of Hidden Value Judgments: Word
Choices as Value Indicators" in Symbols and Values, ed. by Lyman Bryson, 1954,
The essence of this section appears also below, in a more popular form, in "The
Vocabulary of Prejudice/' p. 429.]

LOGIC, LAW, AND ETHICS

be of ''mixed ancestry," an Indian (or a cow) is a "mixed breed." Land
held by a group of white men in accordance with an intricate apportion-
ment of individual rights is called "corporate" or "partnership" or "fam-
ily" property; land held by a group of Indians under arrangements of
equal or greater intricacy is dubbed "communally occupied."

This system of double talk has become standard patter for all current
legislative or judicial programs designed to separate the Indian from his
property. Thus, land from which Indians are excluded is "owned" by
whites; land from which whites are excluded is "monopolized" by In-
dians.39 Governmental taking of land from white men is called "ex-
propriation"; taking of land from Indians is called "freeing the Indian
from the reservation" or "abolishing the reservation system." 40 If a
government repudiates its obligations to a white man we speak of
"governmental bankruptcy"; if a government repudiates its obligations
to an Indian, this is commonly referred to as "emancipating the In-
dian." «

The greater the value-intensities in a given field the more marked are
the manifestations of such double talk. Today the Communist movement
probably offers the finest examples of political double-talk with rapid
shifts from up-talk to down- talk, or vice versa, in accordance with the
changing exigencies of politics. Western statesmen and judges, however,
are not without skill in this domain.42 For example, it is interesting to
note how consistently our judges are able to maintain the principle that
equity will not enjoin a libel. All that is needed is a second vocabulary
with which to describe those libels that courts wish to enjoin. Thus if
courts want to enjoin labor unions from publishing disparaging remarks
about employers they will refer to such publications not as "libels" but

39. See, for example, the opinion of the Court of Appeals for the Ninth Circuit in
Hynes v. Grimes Packing Co., 165 F.ad 323, rev'd, 337 U.S. 86 (1949), and note the
cumulative effect of using the term "monopoly" or "communal monopoly" twenty-two
times in describing the claim of an Aleutian Village to municipal ownership of a har-
bor area that included traditional fishing grounds. In sustaining the attack of the Alaska
Salmon Industry, Inc., against the native community's claim, the Court of Appeals
noted that the Alaska Salmon Industry, Inc., had investments of "upwards of seventy
million dollars'* which were largely dependent upon the packers' continued use of the
area claimed by the native municipality, and also noted that the native community in-
cluded only fifty-seven fishermen.

40. See the speech of Senator Butler in 95 Cong. Rec. 14390 (1949) in support of his
bill to "emancipate" Indians from their reserved lands, tax exemptions, and other
treaty rights.

41. Ibid.

42. Cf. F. S. Cohen, "Colonialism: A Realistic Approach" [p. 364].

150

FIELD THEORY AND JUDICIAL LOGIC

rather as "conspiracies" or "boycotts." 43 Such verbal operations reveal
value judgments of which the judges themselves are often quite unaware.

Towards a Field Theory of Value

The course of our inquiry to this point may be briefly summarized. In the
suppressed moral premises of judicial opinions, in the choices between
words of different value tones, in the selection, classification, and inter-
pretation of facts and precedents, and in the tracing of lines of causation,
we find prime indicators of the value patterns of a judge, a judiciary, or
a society. The sum of such indicators defines a value field. The definition
of a value field makes the contents of the field exportable. That is to
say, if we understand a proposition in the context of its own field we
can translate the proposition into language that will convey the same
informational content in any other value field we understand.

All this is perhaps merely making explicit and formal what most ex-
perienced judges and many lawyers know as a matter of "hunch" or
"intuition/' as Underbill Moore pointed out some eighteen years ago.44
Yet, it seems to me that there is some value in refining such "hunches"
and "intuitions" in the light of the achievements of the more advanced
sciences.45 Just as the physicist's idea of the uniformity of nature in-

43. See Note, "The Privilege to Disparage a Non-Competing Business," 30 Col. L. Rev.
510 (1930).

44. In the traditional jurisprudence, Underbill Moore pointed out, "the art or science
of judicial behavior is a field of knowledge complete and self-sufficient, wholly inde-
pendent of all others and coordinate with them. . . . Such is the lawyer's traditional
way of thinking of his problems, his data, and his methods. To be sure it is grossly in-
adequate and filled with misleading notions. But for him it is a by-product of his pro-
fessional work, seriously regarded on ceremonial occasions only, and never permitted
to limit his field of vision to less than the whole situation upon which he gives an
intuitional judgment. However, to the lawyer's rational account can be attributed his
failure to recognize that his judgments are intuitional and given in inclusive situations
of many biological and cultural factors ... and his failure even to begin systematically
to take into account the factors in the situation." Moore & Sussman, "The Lawyer's
Law," 41 Yale LJ, 566, 569-70 (1932).

45. Again,' I find instruction in Underbill Moore's protest against the old isolation-
ism of the law school: "The lawyer's process of institutional judgment is obviously a
very rough and haphazard approximation of a precise method derived from the pro-
cedure which has been abstracted and his forecast a rough approximation of the result
which would be obtained by a special application of that method. . . , One who
attempts to approach precise method in forecasting the form of judicial behavior
must seek the aid of workers in many other fields of knowledge. Were he to attempt
to forecast the behavior of an individual in a situation which includes statutes and

LOGIC, LAW, AND ETHICS

fluenced the development of Roman and international law, just as the
evolutionary ideas of Kant, Hegel, Darwin, and Spencer powerfully
molded the Anglo-American law of the last century, so the developing
central concept of modern physics is likely to influence the legal and
ethical thoughts of the next century. Let it not be thought that the
sketchy suggestions here made towards the application of the field con-
cept to legal and ethical problems are intended as a call for a new school
of jurisprudence. There have been too many such calls already. Rather
does the field concept, which recognizes the limited and relative validity
of many apparently conflicting views in the practical struggles of the
law court and the market-place, point to the possibility that many con-
flicting schools of jurisprudence may all be true and valid in differing
and limited perspectives or regions. But this possibility, though often
suggested,46 is still sufficiently alien to the temper of contemporary con-
troversy to deserve a few words of explanation.

III. THROUGH THE BLIND ALLEYS OF JURISPRUDENCE
The Elephant and the Judicial Problem

The six blind men of Hindustan who went to see the elephant and, in
the manner of the House of Lords, delivered six separate opinions on
the beast, reported respectively (according to the poetic fable) that the
elephant was something like a wall, a spear, a snake, a tree, a fan, and a
rope. In much the same fashion a careful historian of legal philosophy,
having completed his researches into the juridical reflections of thirteen
philosophers, and having "put aside immediately the attractive thought
that the fundamental truths of the various philosophies of law should
be sifted out and then combined into one harmonious whole," gives us

decisions this would be equally true. The events in the situation which he selects and
takes into account include events which are the focus of study in anthropology, anthro-
pogeography, sociology, and psychology, psychiatry and perhaps other biological sci-
ences. In dealing with each of the selected events, he must call upon those trained in
the discipline which focuses upon that particular event for the special knowledge and
techniques which they command. In the application of his method he must rely upon
the statistician." Id. at 574-6.

46. I have made the suggestion myself often enough. See "Transcendental Nonsense
and the Functional Approach" [above, p. 33]; "The Problems of a Functional Juris*
prudence" [above, p. 77]; "The Relativity of Philosophical Systems and the Method of
Systematic Relativism" [above, p. 95]; Review of Cairns, Legal Philosophy from Hegel
to Plato [below, p. 205]. And see M. R. Cohen, "On Absolutisms in Legal Thought,"
84 U. of Pa. L. Rev. 681 (1936),

15*

FIELD THEORY AND JUDICIAL LOGIC

the dreary and orthodox picture of thirteen great legal philosophers who
could not agree even on what it was they were all talking about:

We have been told by Plato that law is a form of social control,
an instrument of the good life, the way to the discovery of reality,
the true reality of the social structure; by Aristotle that it is a rule
of conduct, a contract, an ideal of reason, a rule of decision, a form
of order; by Cicero that it is the agreement of reason and nature, the
distinction between the just and the unjust, a command or prohibi-
tion; by Aquinas that it is an ordinance of reason for the common
good, made by him who has care of the community, and promulgated;
by Bacon that certainty is the prime necessity of law; by Hobbes that
law is the command of the sovereign; by Spinoza that it is a plan of
life; by Leibniz that its character is determined by the structure of
society; by Locke that it is a norm established by the commonwealth;
by Hume that it is a body of precepts; by Kant that it is a harmoniz-
ing of wills by means of universal rules in the interests of freeedom;
by Fichte that it is a relation between human beings; by Hegel that
it is an unfolding or realizing of the idea of right.47

Accepting the rough validity of Mr. Cairns' summaries of philosophical
insights, is there any reason to suppose that these insights are incom-
patible, one with the other? Cannot the legal order be at one and the
same time a "form of social control" (Plato), a "rule of conduct" and a
''form of order" (Aristotle), a "command or prohibition" (Cicero) of the
"sovereign" (Hobbes) or the "commonwealth" (Locke); a "plan of life"
(Spinoza), "determined by the structure of society" (Leibniz); a "body of
precepts" (Hume); and a "relation between human beings" (Fichte)?
Even if we all meant exactly the same thing by the word "law," could
we not subsume law under many broader categories, including those of
"contract" (Aristotle), "rule of decision" (Aristotle), and a "way to the
discovery of ... the true reality of the social structure" (Plato)? And
even if it be true that Plato, Aristotle, Cicero, and Aquinas formulated
their ideals of law in terms of reason and the good life, while Bacon
stressed the need for certainty, and Kant and Hegel expressed an his-
torical ideal of legal evolution towards universal justice and freedom,
cannot all these views illuminate the possible goods achievable through
the law? Why should we fall prey to the monolithic fallacy that only
those who use a prescribed set of words can attain salvation?

If we view philosophy, including jurisprudence, not as a set of proposi-

47. Cairns, Legal Philosophy from Plato to Hegel (1949), p. 556.

153

LOGIC, LAW, AND ETHICS

tions but as a way of understanding, we may say that one philosophy is
superior to another if it achieves a greater degree of generality so that
it can include other philosophies as special cases within a larger frame-
work of convergent perspectives. Recognition of the relativity of defini-
tions permits the establishment of a family of perspectives (e.g. Euclidean,
Riemannian, and Lobachewskian geometries).48 A comprehensive legal
philosophy can find room for the insights of many different thinkers.

Legal philosophy is not a bad play in which each actor clears the stage
by killing off his predecessors. Rather is legal philosophy, like philos-
ophy generally, a great cooperative exploration of possible perspectives
(Weltanschauungen) through which life's many-faceted problems can be
viewed.49 Progress in legal philosophy does not depend upon rejection
of the insights that came to Plato and Aristotle, any more than progress
in poetry depends upon rejection of Homer, or progress in music upon
contempt for Bach and Beethoven. Nor is it necessary to assume, in the
fashion popularized by Hegel and Pound, that every "school" (perish
the word!) of jurisprudence supersedes its predecessors. The history of
legal philosophy is not, as some of Pound's writings have suggested, a sad
history of successive errors, each thesis producing, in Hegelian-Marxian
fashion, its own antithesis and destruction, until, by a series of stages,
we come to the ultimate product of the juristic mind, sociological juris-
prudence, after which anything different must be considered as one of
time's typographical errors.

More tolerance may give us more truth. The house of jurisprudence
has many mansions. Of law and the legal order many questions may be
asked. The seekers after "natural law," who have tried to formulate in
legal patterns the most general needs of human society, are not con-
tradicted or displaced when men turn to inquire into the historical forces
that produce diverse legal systems in different lands and epochs. Those
who have given us the logical analysis of legal terms that goes by the
name of analytical jurisprudence never denied the role of legal sociology
in exploring the social sources of legal orders and disorders, Indeed,
the great exponents of analytical jurisprudence, Austin, Bentham, and
Holmes, were precisely the men who called most cogently for scientific
inquiry into the social context and consequences of law. Those who have

48, The most comprehensive statement of the relativity of systems that I know of is
to be found In the brief paper of Henry M. Sheffer on "Notational Relativity" in
Proceedings of the Sixth International Congress of Philosophy (1927), pp. 848-51-

49. The conception of philosophy here stated I have attempted to develop more
fully in "The Relativity of Philosophical Systems and the Method of Systematic Rela-
tivism" [above, p, 95].

FIELD THEORY AND JUDICIAL LOGIC

earned the name of "realists" by drawing clear distinctions between the
law that is and the law that ought to be do not obstruct efforts at social
reform by their distinction .» Rather, each line of exploration is likely to
disclose landmarks which will prove of value to other explorers moving
in different directions and starting from different approaches.

^ Wilmon Sheldon has acutely observed that philosophers are generally
right in what they affirm of their own vision and generally wrong in what
they deny of the vision of others. Now it may be true that denying the
vision of others adds controversy to the spice of life and thus draws at-
tention to important views that would otherwise fail to attract serious
consideration. And certainly it is only natural for proponents of new
thoughts, and even more natural for the camp-followers of original
thinkers, to claim for these thoughts dominion over the universe of ideas.
But a saner perspective shows that no philosophical or jurisprudential
doctrine has ever filled the space of our intellectual universe, and that the
products of human thinking across a hundred centuries, all together,
illuminate only a few of the darker corners of the world we seek to under-
stand. It is the part of wisdom, in jurisprudence, as in science and phi-
losophy generally, to avoid extravagant claims and to give those on whose
thinking we build as much respect as we hope to deserve from those who
come after us.

A synoptic vision which can find value in many perspectives is not to
be confused with mushy-minded scissors-and-paste eclecticism. Stringing
together the views of many men who followed divergent paths is a fruit-
less enterprise, productive only of a sense of complete futility and con-
fusion. If the six blind men of Hindustan who reported on the elephant
had each noted the direction of his approach and the point at which he
made contact with the beast, the six reports might have been systemati-
cally coordinated and a correct, though incomplete, account of the
animal might have emerged. So, too, if we took account of the different
perspectives from which legal philosophers have approached the prob-
lem of the nature of law, we should not only be in a better position to
appraise each of their contributions but we should be able to systematize
their various insights and perhaps emerge with a more comprehensive,
synoptic vision of the legal order than any past generation has enjoyed.

The judge who understands how two lawyers can disagree on the ele-
mentary facts of a simple case, why each lawyer thinks the other's prec-
edents are not in point, and how they can differ even in their causal
judgments, may achieve a higher level of understanding than the most
brilliant of advocates. Similarly, the vision of legal philosophy as a family

50. See the incisive study of Garlan, Legal Realism and Justice (1941).

155

LOGIC, LAW, AND ETHICS

of possible perspectives upon the legal order may help us to achieve a
broader and deeper understanding than is attained by even the most
brilliant of jurisprudential advocates.

The systematization of possible logical systems outlined by Sheffer 51
points to the possibility of a systematization of jurisprudential systems.
The difficulties in such a task are serious. But if we face the difficulties
resolutely, none of them appears insuperable.

The Inarticulate Value Judgments of Legal Philosophers

The first difficulty in systematizing juristic perspectives lies in the fact
that legal philosophers, like judges and human beings generally, do not
ordinarily make explicit their own purposes or the value patterns out of
which their purposes emerge. It therefore becomes necessary for those of
us who seek to locate the perspective of Hobbes, Spinoza, Locke, or Kant,
for example, within a more comprehensive family of perspectives to
understand what these men were driving at when they put forward their
very different conceptions of law. If we appreciate the evils of civil war-
fare and anarchy which Hobbes experienced and portrayed so vividly,
and if we consider his analysis of law and sovereignty as a persistent in-
quiry into the ways of avoiding these evils, we can hardly be satisfied
with the fashionable practice of dumping Hobbes into a dustbin marked
"defenders of despotism." For the evils that Hobbes saw are still before
us, and though his analysis, as developed by Bentham, Austin, and
Holmes, does not answer all juridical problems, it must be a part of any
comprehensive view of law and the world order.

That Spinoza and his follower Locke were more concerned than Hobbes
with the evils of tyranny and anxious to establish realms of civil liberty
which demand respect even from governments gives us, who are the heirs
of Spinoza and Locke, as well as of Hobbes, the wherewithal to balance
the needs of order and the needs of freedom in the difficult social prob-
lems that face us today.

Even the forbidding formalism of Kant comes to make practical sense
if we appreciate Kant's concern with a problem which he saw more clearly
a century and a half ago than many of our contemporary statesmen do
today: the problem of how men pursuing radically different social goals
and capable of destroying each other with the weapons of modern science
can possibly evolve a pattern of living together in mutual respect, a pat-

51. See note 48 supra.

156

FIELD THEORY AND JUDICIAL LOGIC

tern more fundamental than any of the things that mark off nation from
nation, class from class, and man from man.52

The Relativity of Definitions

Among the difficulties that stand in the way of a comprehensive view
of the legal order is the naive view of definitions as propositions which
are true or false. All of the endless arguments as to whether international
law is really law, whether an unenforced statute is really law, etc., depend
for their continuance upon the notion that only one definition of law can
be correct. Once we recognize that a definition is, strictly speaking, neither
true nor false but rather a resolution to use language in a certain way,53
we are able to pass the only judgment that ever needs to be passed on a
definition, a judgment of utility or inutility. We can then recognize that
Holmes' definition of law as the way courts decide cases is an instrument
of tremendous value for the practicing lawyer or for any critical observer
of the role played by courts in modern civilization. On the other hand, we
may frankly admit that the definition has very slight utility to an an-
thropologist investigating the ways in which Eskimos deal with murder
or divorce. Clarity requires not that all of us forever adhere to a single
definition but that we make clear what definition of law we are using in
any given context, so that what we say can be fairly translated into other
people's universes of discourse.

The Theory of Translation, and the Relativity of Nonsense

The true significance of Einstein's general theory of relativity, as we
have noted,54 is not that it calls attention to the long-recognized diversity
of physical perspectives, but that it makes possible a translation from any
perspective into any other perspective.

Can we translate a thought from one social perspective to another?

Certainly we try to do this whenever we translate from one language
to another. Sometimes we succeed. When we fail, it is often because we

52. I think the human objectives of Kant's juridical quest become clearest in his
Idea of a Universal History from a Cosmopolitical Point of View (1784) and his Essay
on Perpetual Peace (1795). See Kant's Principles of Politics (Hastie ed., 1891).

53. See F. S. Cohen, "Transcendental Nonsense and the Functional Approach"
[above, pp. 33, 61-62]; M. R. Cohen, "On Absolutisms in Legal Thought," 84
U. of Pa, L. Rev. 681 (1936).

54. See note 4 supra.

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LOGIC, LAW, AND ETHICS

forget that a language embodies the history of a people's thinking and
that different people have partitioned the world in different ways.

Mark Twain, when he saw what French translators had done to his
Jumping Frog story, was moved to words of despair: "When I say, 'Well,
I don't see no p'ints about that frog that's any better'n any other frog/
is it kind, is it just, for this Frenchman to try to make it appear that I
said, 'Eh bien! I no saw not that that frog had nothing of better than each
frog'? I have no heart to write more. I never felt so about anything be-
fore." 55 Every lawyer who has seen his views of the law or the facts of a
case restated or summarized by a judge who does not agree with them
knows how Mark Twain felt.

Of course, some translators do better than others. A particularly fine
performance was given a few years ago at a labor convention in El Paso
attended by labor delegates from both sides of the Rio Grande. Those
from the north side of the river made matter-of-fact speeches in English
about wage increases and the reduction of working hours. Those from
across the stream made impassioned speeches in Spanish about the role
of labor unions in the social revolution. The translator was equal to the
occasion. All the English speeches, when translated into Spanish, were
about the social revolution, and all the Spanish speeches, when translated
into English were about hours and wages. Mutual appreciation and
understanding grew. Bonds of harmony were established that would cer-
tainly have been smashed if Mark Twain's Jumping Frog translator had
sneaked into the El Paso convention.

Only in mathematics do we find perfect translations — the sort of thing
that enables us to translate any proposition about a straight line in
Euclidean geometry into an equivalent proposition about a curve in
Riemannian geometry. But outside of mathematics, though we live in a
world of imperfections, some imperfections are worse than others. Those
of us who take our law in realistic doses are less likely to misunderstand
writers on natural law if we translate their propositions about "law" into
equivalent propositions about "legal ideals." Operating with such formu-
lae of translation law students who have been prone to distrust all dis-
course written in unfamiliar terms are sometimes amazed to learn how
much good sense was devoted centuries ago to some of the problems that
still trouble us.

As yet this sort of translation among the different tongues of juris-
prudence is mostly in the inarticulate stage of "hunch" and "intuition."

55. Mark Twain, The Family Mark Twain (1935), p. 1080 ("The Jumping Frog: In
English. Then in French. Then clawed back into a civilized language once more by
patient, unremunerated toil.")

FIELD THEORY AND JUDICIAL LOGIC

The achievements of modern mathematics and physics, however, give
ground for hoping that we shall some day achieve a powerful new or-
ganon for mutual understanding — a theory of translation. Until that day
comes, we may do well to remember that no two philosophers and no
two jurists can ever contradict each other unless they are talking about the
same thing, and that there is no reason to believe that those who use the
same words necessarily mean the same things. In fact, I find it to be a
fair working assumption that when a legal philosopher says something
that I recognize to be absurd, the statement probably meant something
different to him than it means to me. As an appendix to a theory of
translation we need a doctrine of the relativity of nonsense.

Until mathematicians become lawyers or lawyers become mathemati-
cians, we may at least cultivate the spirit of tolerance which begins by
recognizing that what is worth saying can be said in any language.

Judicial Ethics

MY ROLE in this symposium is a modest one: it is to clear the ring for
the feature fight of the program between Dean Brown and Professor
Hartman. I am to sweep away some of the rubbish in the ring that often
gets in the way of a clean battle on issues of ethics. I think the most
serious rubbish that needs to be swept away is the widely prevailing no-
tion that ethics is something off in the clouds, or off in some never-never
land of Utopia, something uncertain and subjective, whereas the law is
something that 'is very definite, clear, hard, here and now. Of course, if
that were true, there would be no point in trying to apply ethical doc-
trines to actual cases.

That the teachings of ethics can and should be applied to actual cases
is not a novel idea. It was urged years ago by an illustrious law teacher
and judge. Speaking of ethical doctrine, he commented: "It is not in
heaven, that thou shouldest say, Who shall go up for us to heaven, and
bring it unto us, and make us to hear it, that we may do it? Neither is it
beyond the sea, that thou shouldest say, Who shall go over the sea for
us, and bring it unto us, and make us to hear it, that we may do it? But
the word is very nigh unto thee, in thy mouth, and in thy heart, that
ihou mayest do it."

In line with this admonition of the illustrious teacher whose words I
quote, the participants in this symposium have agreed to talk about things
that are here, in our hearts, before us, and close at hand, and not entirely
in some Utopia or heaven of abstractions. We all agree on one basic
point: that whatever else the theory of value or ethics may be, it should
at least be a criticism of things that happen day after day in our courts
and in our legislatures, as well as in the privacy of our own thoughts.

The case of Oleff v. Hodapp,1 provides us with a fair test of this hy-

i. 129 Ohio St. 432, 195 N.E. 838 (1935)-

Delivered at symposium on "Ethical Values and the Law in Action" at the College of
Law, Ohio State University, 1950. Other speakers were: Dr. Brendan F. Brown, Dean
of the School of Law, Catholic University, and Dr. Robert S. Hartman, Professor
of Philosophy, Ohio State University. Published in Ohio State Law Journal, 1951.

l6o

JUDICIAL ETHICS

pothesis of the universal applicability of ethical judgments or ethical
values. In that case a man named Tego Miovanis had a joint bank ac-
count with his uncle, Apostol Miovanis. Each depositor had unlimited
authority to withdraw funds. Apparently Tego was afraid that this un-
limited authority might be abused by his uncle, and so he removed the
uncle from this mortal scene. The Ohio Court had to decide whether as
a result of the murder, the joint deposit now belonged exclusively to the
murderer, or whether the heirs or representatives of the murderee con-
tinued to have an interest in the joint deposit. The Court decided, by a
majority vote, that after the murder the bank account belonged com-
pletely and exclusively to the murderer. Passing over for the moment the
question of the correctness or incorrectness of that decision, let us try to
understand what it was that the Court thought it was doing when it
reached that decision. I quote from what the Court said it was doing:

We are not subscribing to the righteousness of Tego's legal status;
but this is a court of law and not a theological institution. . . .
Property cannot be taken from an individual who is legally entitled
to it because he violates a public policy.2 Property rights are too
sacred to be subjected to a danger of that character. We experience
no satisfaction in holding that Tego is entitled to this account; but
that is the law, and we must so find.3

There are two things about this opinion that are particularly interest-
ing. One is the Court's statement that "this is a court of law and not a
theological institution." The second is the Court's statement that "prop-
erty rights are too sacred" to be subjected to certain dangers that would
follow if the courts allowed considerations of "righteousness" or "public
policy" to influence decisions on property rights. Property rights, we are
told, are too sacred. Apparently, if property rights were less sacred, or if
the right to life were more sacred, the Court might have decided the case
against the murderer Tego and in favor of the representatives of the
murdered uncle.

This question of the comparative sacredness or holiness of different
rights is, I think, one of the most important questions that theological
institutions have been considering for a good many years. It seems to me
that this question of whether one property right, or civil right, or human
right is more or less sacred than another is a very important part of
theology. Why, then, should the Ohio Supreme Court insist that it is not

2. Note the delicacy of the court's reference to murder.

3, 129 Ohio St. at 438, 195 N.E. at 841.

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LOGIC, LAW, AND ETHICS

a theological institution when it passes upon the relative sacredness of
different rights?

Before we consider that question further, a few words are in order
about a case very similar to the Oleff case, disposed of about two hundred
years ago, the so-called Highwaymen's Case. Modern research has shown
that this case was not invented by a law professor who wanted to keep
his students on the straight and narrow path, but apparently was a real
case.4 In this case, one highwayman brought suit against his associate for
a fair division of the booty. The case was very skillfully pleaded; the bill
of complaint does not recite that the plaintiff was a highwayman, but
merely alleges that there was a mutual partnership, that "the plaintiff
was skilled in dealing in several sorts of commodities," that the parties
had, "proceeded jointly in the said dealings with good success on Houn-
slow Heath, where they dealt with a gentleman for a gold watch," and
then further recounts how they dealt with several other gentlemen for
divers watches, rings, swords, canes, hats, cloaks, horses, bridles, saddles,
and other things of the value of about 2,000 pounds. Finally the com-
plaint recites that the defendant refused to abide by the partnership agree-
ment to divide the swag evenly.

The plaintiff was not successful in the case. Apparently the property
rights and contract rights of the plaintiff enjoyed a lesser degree of sacred-
ness in the Court of Exchequer in 1725 than they would enjoy before the
courts of Ohio today. At any rate, the Court of Exchequer ordered the
tipstaff to attach the bodies of the plaintiff's solicitors. They were fined 50
pounds each and committed to the custody of the Warden of the Fleet
pending payment of the fines. One of the solicitors was thereafter trans-
ported, and apparently founded one of the First Families of Virginia. At
that he did rather better than did the defendant and the plaintiff, who
were both hanged. I suppose that the Ohio Supreme Court would con-
sider that this was a rather theological disposition of the case.

These two decisions are both significant because they indicate two
different approaches to the question of how far a court of law may prop-
erly look into questions of ethics, or public policy, or theology.

The approaches that are reflected in these two cases are further il-
luminated in the third case on our agenda, the case of the Northwest
Shoshone.5 It seems that before the talented but unfortunate solicitor in
the Highwayman's Case was transported to North America, this country
was claimed by Indians who thought they owned it. Ever since the arrival
of the first white immigrants, they have been devoting some of their

4. See Everet v. Williams (1725), 9 £-ft- Re». 197 (1893).

5. Northwestern Bands of Shoskone Indians v, United States, 3*4 XLS. 535 (1045)-

JUDICIAL ETHICS

finest legal talents to discovering defects in these Indian titles and, in
that way, devising justifications for the removal of land, minerals, and
timber from Indian ownership to white ownership, in the interest of
progress. One of the most brilliant and ingenious justifications of this
process is that which is given by Justice Jackson in his concurring opinion
in this Northwest Shoshone case. He advances the theory that Indians
were really communists, who did not understand or appreciate property
rights. Ownership of land, he says, "meant no more to them than . . .
sunlight and the west wind, and the feel of spring in the air. Acquisitive-
ness, which develops a law of real property, is an accomplishment only
of the civilized." It follows, then, that the United States being civilized,
is under no legal obligation to pay Indians when it takes away their
homes, their timber, their fisheries, their water power, or anything else
that might be needed for railroads, canneries, pulp companies, or other
progressive organizations that appreciate property rights. In advancing
this theory that civilized people have the right to relieve less civilized
people of their possessions, Justice Jackson insists that the moral and the
legal have nothing to do with each other. He says specifically, referring to
moral deserts and legal rights, ". . . we do not mean to leave the impres-
sion the two have any relation to each other." 6 Justice Jackson might
very well have said what the Ohio Supreme Court said in the Oleff case:
"This is a court of law and not a theological institution."

In fact, however, the same question that Justice Jackson was consider-
ing had been referred by government officials some years earlier to a
theological institution. The question whether Indian titles were good
against the government was referred to a professor of moral theology at
the University of Salamanca in 1532 by the Spanish Crown, which was
naturally concerned about the relative rights of the Crown and the In-
dians with respect to lands of the New World.

Professor Vitoria considered the sociological facts of the situation. He
considered the sinfulness of the life of the Indians prior to the coming
of the Spaniards. He considered the fact that Spain had discovered and
explored the New World under a special grant of the Pope. He con-
sidered all the general facts that Justice Jackson considered, and came to
the conclusion that the relative ignorance and sinfulness of the Indians
could not impair their title to their property. He concluded that the
Spaniards' discovery of the Indians did not give the Spaniards any right
to Indian property any more than the Indians' discovery of the Span-
iards gave the Indians a right to Spanish property. And finally he reached
the conclusion, a rather courageous conclusion for a professor of moral

d. Id. at 358.

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LOGIC, LAW, AND ETHICS

theology in the University of Salamanca to reach, that since the Pope's
authority was purely spiritual, and limited to those that acknowledged
his spiritual jurisdiction, the Pope could not, even if he wanted to, bestow
any title to land upon the Spanish Crown or any other crown, and the
only title to land that could be acquired by the Crown would have to be
by way of agreement or treaty with the Indians concerned.7

If this question of the right of the powerful to take from the weak
was properly a theological question (as I think it was), was it not just
as theological when Justice Jackson answered it in his way as it was when
Professor Francisco Vitoria answered it 400 years earlier, in his way?

All through the cases that have been mentioned so far runs the basic
question whether the acquisition of wealth by superior force establishes
a right to legal protection of such acquisitions. Whichever way you an-
swer this question, whether you answer that might makes right, or an-
swer it the other way, you are answering a basic question of ethics, or
theology, or whatever else you want to call the study of values, of good
and bad.

Let us pursue this analysis a bit further with the cases of the minimum
wage and flag salute.

We all recall the Adkins case,8 involving the constitutionality of the
minimum wage statute in the District of Columbia, as the case in which
Justice Sutherland said that changes in the status of women culminating
in the igth amendment had brought the difference between the sexes, "al-
most, if not quite, to the vanishing point," and Justice Holmes replied:
"It will need more than the igth amendment to convince me that there
are no differences between men and women."

In the Adkins case, Justice Sutherland could not see any moral issue,
because, he said, the morals of rich women were no better than the morals
of poor women. From this he concluded that questions of morality had
nothing to do with the case. Indeed he went further and commented on
the brief that had been submitted by Professor (not yet Justice) Frank-
furter, showing what actually happens when women have to work long
hours for inadequate wages. Speaking for a majority of the Court, Justice
Sutherland said of these facts: "These are all proper enough for the con-
sideration of the law-making bodies, since their tendency is to establish
the desirability or undesirability of the legislation; but they reflect no
legitimate light upon the question of its validity, and that is what we
are called upon to decide."

7. Cf. F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United
States" [below, p, 230].

8. Adkins v. Children's Hospital, 261 U.S. 5*5 (1923).

164

JUDICIAL ETHICS

The decision that Justice Sutherland announced in the Adkins case is
dead and decently buried by the Supreme Court's decision 14 years later
in the West Coast Hotel Company case.9 But we still have with us the
approach and spirit of Justice Sutherland's majority opinion in that case,
the insistence that considerations which establish the desirability or un-
desirability of legislation throw "no legitimate light" on its constitution-
ality. And very curiously, one finds Justice Frankfurter, in the Barnette
case,10 using the same club that Justice Sutherland used against him, but
this time using it against his brethren, the majority of the Court. In his
dissenting opinion in the Barnette case, Justice Frankfurter declares:
". . . law is concerned with external behavior and not with the inner
life of man." Contrast that with the opinion of Justice Murphy, who,
siding with the majority, affirms that the highest judicial duty is "to
uphold spiritual freedom to its farthest reaches." Or contrast Justice
Frankfurter's attempt to exclude from judicial consideration the effect
of the West Virginia statute on "the inner life of man/' with the rationale
of the majority opinion, delivered by Justice Jackson. ". . . the com-
pulsory flag salute and pledge requires affirmation of a belief and an
attitude of mind." Such action, the court held, invades the sphere of
intellect and spirit, which it is the purpose of the First Amendment to
our Constitution to preserve from all official control.

By way of answer to that argument, Justice Frankfurter warns his
brethren: ". . . if the considerations governing constitutional construc-
tion are to be substantially those that underlie legislation then, indeed,
judges should not have life tenure." And again, in his dissent, Justice
Frankfurter warns against the very dire danger not only to the lifetime
jobs of his brethren on the bench, but to the entire nation, if, as he
says, "we unwarrantably enter social and political domains wholly out-
side our concern," almost the very words of Justice Sutherland's opinion
disposing of Mr. Frankfurter's brief in the Adkins case.

Again I skip the ethical question: Which of these decisions is right and
which of these decisions is wrong? What is of concern for the moment, is
a very much simpler question: What was it that our judges thought they
were doing in the Oleff case, the Northwestern Shoshone case, the Adkins
case, and some of the flag salute opinions when they said that questions
of righteousness, or morality, or theology, or social policy or "the inner
life of man" could not be considered by a court of law?

I rather think that these cases throw a good deal of light on the pre-
vailing attitude of courts to questions of ethics. Perhaps the most obvious

g. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

io West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

LOGIC, LAW, AND ETHICS

fact, when we consider these and other cases, is that, generally speaking,
judges think they are doing the right thing when they come to the deci-
sions that they do come to. At least I have never known a judge who
admitted, or even thought that he was doing what was wrong. I am quite
willing to leave to the psychologists the question whether judges make
the decisions they do make because they think they are right, or whether
they think the decisions are right because they have made them. If you
believe the former you are labeled an idealist; if you believe the latter
you are labeled a cynic. Not caring for either label, I leave that issue to
Dean Brown and Professor Hartman. But whichever way you answer that
question, one thing remains pretty clear, and that is that judges decide
cases pretty much along the lines of their own conceptions of what is,
for them, right, decent, just, and proper. And judges' ideas of what is
right and decent about their own behavior are inevitably tied up with
their ideas of what is right and decent about the behavior of other people.
This means that if you understand the ethical patterns, the value pat-
terns, of a judge, you are better able to predict what he is going to do,
when your client asks you for advice. You are likewise better able to im-
prove or enlighten the ethical systems of judges if you know what they are.
And that brings me to my final question: How are we going to discover
the ethical views of Justice White or Justice Black? Or, more impor-
tantly, how are we going to discover the ethical views of the Roosevelt
contingent in the Federal judiciary or of the Truman contingent?

One thing that makes it especially hard to answer this question is the
judicial decorum that requires judges to conceal their ethical assumptions
behind their large black flowing robes. In fact a major part of the judicial
ritual consists of forms of magic whereby ethical opinions are exorcized
from the judicial chambers.

One of the simplest forms of magic is word magic. When the Greeks
were much bothered by the bad winds and storms on the Black Sea,
they gave the sea the name "Euxine," the "Sea of Good Winds." And
when the Viking explorers, some centuries later were troubled at finding
7,000 foot layers of ice on one of their newly discovered colonies, being
the world's most successful real estate operators, they called their new
colony "Greenland," thus establishing a pattern which suburban real
estate developments follow to the present day. In the same way, when
we are worried about the dangers of political corruption, recognizing,
with Lord Acton, that power corrupts and absolute power corrupts ab-
solutely, if we are particularly worried about the harm that an official
may do we call him "Honorable," or if he is very, very powerful, and

166

JUDICIAL ETHICS

therefore very, very corruptible, we call him "Justice." I don't know how
much effect the name "Euxine" had on the wind velocity of the Black
Sea, or how much effect the name Greenland had on the melting point of
ice in that area, or how much effect the title "Justice" had when applied
to Mr. Sutherland or Mr. Tom Clark. But at least these honorific words
tell us something about the people who use them and about their hopes
and aspirations. And all this paraphernalia— the oath of office, and the
robes, the titles, the elevation of the place where judges sit above the
place where they stood when they were lawyers — all these elements of
ritual express certain widespread human hopes that men in certain sects
will utter words of justice as uniform as their robes, and of a higher
quality than the words spoken a few inches lower by mere lawyers.

According to the prevailing idea, views of ethics are highly uncertain,
shifting and variable, while rules of justice and law are certain, stable,
and unchanging. When we realize this, we can begin to understand why
the Ohio Supreme Court in the Oleff case, when it considered the degree
of sacredness of the rights of joint depositors, felt compelled to exorcise
theology, and why Justice Jackson in the Shoshone case, and Justice
Sutherland in the Adkins case, and Justice Frankfurter in the Barnette
case all sought to exorcise morality from decisions in which they might
find moral scrutiny embarrassing.

Actually, judges are inclined to regard as theological only those the-
ologies that they do not share themselves. The Ohio Supreme Court re-
garded its own opinions as to the sacredness of certain property rights as
not theological but as obvious truths; the contrary views of unsuccessful
counsel as to the sacredness of rights of life are dismissed as theological.
So, too, courts are generally inclined to regard as moral theories only
those moral theories that they do not accept themselves without question.
Justice Sutherland was inclined to regard defenses of minimum wage
legislation for women as moral theory, whereas the denial of validity to
such legislation he regarded as biological truth, or logic, or eternal
justice, or constitutional law. Such terms, then, as theological and moral
become very good negative indicators of judicial views on theology and
ethics. It is a pretty safe rule that whenever a judge says, "This is a court
of law," and then goes on to say that he cannot be guided by moral or
theological considerations, he is actually being guided by moral or theo-
logical considerations without knowing it. Perhaps in saying this I am
only repeating, in a clumsy way, what Justice Holmes said many years ago:
"I think that the judges themselves have failed adequately to recognize
their duty of weighing considerations of social advantage. The duty is

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LOGIC, LAW, AND ETHICS

inevitable, and the result of the often proclaimed judicial aversion to
deal with such considerations is simply to leave the very ground and
foundation of judgments inarticulate and often unconscious." n

Of course, in all this, judges are merely behaving like human beings.
We are all victims of the egocentric predicament. We can all see other
people's eyes, but our own eyes we never do see. We all see other people's
prejudices and moral assumptions; our own prejudices and moral assump-
tions appear to us in the guise of life's experience and wisdom. In fact,
Descartes once said that of all God's gifts the most fairly distributed was
good sense, seeing that everyone was satisfied that he had received his fair
share.

In days when orthodoxy was a term of praise, somebody coined the
remark "Orthodoxy is my doxy, heterodoxy is the other follow's doxy." I
think we may all say that religion is what I, and those who believe like
me, think about the unseen world, and superstition is what the other
fellow believes. Idolatry is the other fellow's attitude toward the material
things that enter into religious experience; our own attitudes towards
such material objects we characterize more circumspectly as reverence for
religious symbolism. Theories we agree with we call facts; facts we dis-
agree with we call theories. Other people's conceptions of the universe
we call metaphysics. Our own conceptions we call good, hard, common
sense. Generally speaking, common sense is the metaphysics of 500 years
ago slightly decayed.*

Once we recognize the personal distortions that affect each of us,
whether we are judges or non-judges, once we recognize the blind spots
that we each have in things that come close to us emotionally, we have
taken the first steps toward mutual understanding on questions of right
and wrong. Perhaps an analogy from physics may be illuminating. Mod-
ern physics, thanks to Einstein, has developed a theoretical basis for
predicting that what is a straight line to observation post A will be an
ellipse to observation post B, or that events which are seconds apart at
observation post C will be simultaneous at observation post D. In this
way, by systematizing the relativity of the observation post, Einstein has
made it possible to correlate and coordinate all observations in physics.
It has eliminated relativity as a distorting factor. I think we seriously

n. Holmes, "The Path of the Law/' 10 Harv. £. Rev. 456, 467 (1897).
* [Ed. note: See "Field Theory and Judicial Logic" (above, p. 121) for a more ex-
tended discussion of this point.]

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JUDICIAL ETHICS

need such a theory, a field theory we might call it,12 in ethics and espe-
cially in those fields of ethics that have a particular bearing on our legal
problems. Given such a theory we might be able to eliminate moral
relativity as a distorting factor and thus achieve the same kind of mutual
understanding — a translation between systems — in the field of ethics that
we have achieved in physics.

Given such an approach, we might be able to understand some things
that are otherwise very puzzling. For example, how is it possible for two
lawyers, in their briefs on appeal in the same case, to give such completely
different accounts of the facts in the case as you generally find in a pair
of appellant's and appellee's briefs? Or how is it possible for two opinions
in the same Supreme Court case to give such completely different ac-
counts of the facts and the issues? Or how is it possible for two lawyers
or two judges of equal intelligence to disagree so completely as to whether
one case is a precedent for another case?

The hypothesis that I want to submit for dissection by the other par-
ticipants in this discussion is that public policy is not an emergency factor
that you bring in as a lawyer when the cases are against you, or that you
invoke as a judge when you have been sufficiently confused by advice of
counsel. Public policy, or social ethics or whatever else you want to call
your analysis of values is not an emergency third-string substitute that you
send out on the field when the regular players and the second string
"subs" are all used up. Rather, public policy is the field itself. It is what
gives pattern and significance to every play in the game, to every citation
of precedent, to every statement of facts, to every assertion of causal
efficacy. What facts in a case are important depend upon the value screens
through which you look at the facts of a case. Whether the differences
between two cases are important or unimportant does not depend on
logic. The differences are important or unimportant because of a theory
of importance. A theory of importance, I submit, is a theory of value.
Whenever we deal with such questions as whether the defendant exercised
due care, or whether the plaintiff received just compensation, or when
we consider what is fair comment in a libel case, or unfair competition,
or fair value, these key words, "due," "just," "fair," "reasonable," do not
have self-sufficient meanings in themselves. These legal ideals have mean-
ing only in the context of whole patterns of social values, what we might
call, in old-fashioned language, ethical systems.

For most judges, for most lawyers, for most human beings, we are as
unconscious of our value patterns as we are of the oxygen that we breathe.

12. Cf. F. S. Cohen, "Field Theory and Judicial Logic" [above, p. 121].

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LOGIC, LAW, AND ETHICS

To bring these unconscious, uncriticized value patterns into the light of
day is, I think, the most important task that faces our generation today
in the field of law, a task that requires cooperation among many schools
and many disciplines.

I do not mean to suggest that increased attention to the implicit hidden
value judgments in our legal decisions and our statutes is going to bring
us swift remedies for all of the ancient legal diseases. But it is encourag-
ing to find an increased sensitivity to moral issues in everyday cases. There
are many signs today, in the law schools and on the bench, of that in-
creased sensitivity. The holding of this symposium is only one of many
signs of an increased sensitivity to these problems on the part of practic-
ing lawyers. This increased sensitivity may help us to break down an
attitude that is just as potent a source of evil today as it was 3,500 years
ago, the attitude that morality and ethics have to do with something up
in the heavens, or in some far-off land, and not with the here-and-now of
daily life. There are not as many teachers today in the law schools as
there used to be who insist that students forget about the ethical issues in
a case, forget about social policy considerations, and stick to "the law,"
as if there ever were any law that did not involve issues of ethics, as if
there ever were a court judgment that did not reflect somebody's views
of social policy, as if there ever were a case that did not depend for its
meaning and its precedent-value upon value- judgments of judges and of
the people that make judges and unmake judges. Those who have faith
in democracy and human reason know that consciousness of these ques-
tions is the first step towards intelligent mastery of our course and our
destiny as a free people. We have been told that without such vision the
people perish. And we know that without such vision constitutional
safeguards and promises of freedom are only words on old pages crum-
bling to dust.

All of us who face the obligations that our democracy attaches to the
study and the practice of law have a responsibility towards our fellow
citizens, that is a greater responsibility than those in other fields and pro-
fessions. Ours is the responsibility for deepening public consciousness of
the hopes, the ideals, and the values that are written into our constitu-
tions and our laws. We have a responsibility for broadening the con-
sciousness of the ways in which we fail to meet those hopes and those
ideals. Our society, by and large, has marked out its aspirations in the
books of the law, for those who can read them; and we who are charged
with the reading of those books have a special responsibility for keeping
alive the vision of our country's highest hopes and deepest aspirations.

170

Human Rights: An Appeal to Philosophers

PERHAPS the greatest o£ all the riddles that the Sphinx of History has put
before our generation is the problem of how, if at all, men of different
races, conflicting religions, and opposing economic and political faiths,
can live together on a shrinking earth. This is the kind of problem on
•which human beings have habitually turned to philosophers for guidance.
We all know the penalty that the Sphinx imposes for failure to answer
such riddles. And so today the peoples of the world ask for philosophical
vision in meeting the practical question: What rights, if any, can a man
claim of me not because he is my brother or my neighbor or my colleague
or co-religionist or fellow-citizen, but just because he's human?

This is a practical lawyer's appeal for help on behalf of clients to
whom the question of human rights is particularly pressing. It so hap-
pens that some of these clients are aliens, not citizens, so they can't very
well talk or worry about rights of citizenship. Many of them are without
property, and so not deeply interested in rights of property. Many of
them have no jobs, and so are not particularly interested in the rights
of labor. But all of them are human, and if that gives them any rights,
they would like to know, and I, as their lawyer, would like to know,
what those rights are. And so I come to a forum of the wise men of
America searching for light on the problem. If I can return to my clients
with even one lighted candle, that would be better than sitting and curs-
ing the darkness. But I should like to return with a whole candelabra of
seven candles illuminating seven questions that seem to me to be at the
heart of the world's great darkness today.

QUESTION i

The first of these questions is a very modest one, which might be an-
swered not only by utilitarians and anti-utilitarians, Thomists and anti-
Thomists, Marxists and anti-Marxists, but even by those philosophers

Presented as an address at the 1952 annual meeting of the American Philosophical
Association, Eastern Division. Published in The Review of Metaphysics, 1953.

171

LOGIC, LAW, AND ETHICS

who think that ethical statements are neither true nor false but only
animal noises, like the barking of dogs or the song of the mocking-bird,
which are intended to influence the behavior of other animals and fre-
quently do. Our first question, then, is: When people discourse on human
rights, what light does such discussion throw upon the character and
motivations of the discussants?

This, I submit, is a significant question even if there are no human
rights. Even outside the field of ethics we often find in a statement more
information about the speaker than about the object of his discourse.
One may disbelieve in witches and yet find significance in the fact that
the State of Delaware and, until 1935 or so, the Federal Government have
declared witchcraft to be a punishable offense. That may not tell us
much about witches but it does tell us something about the State of
Delaware and the Federal Government. Consider, for example, a com-
pletely Machiavellian cynic who views the discussion of human rights as
a process of noise-making by which rival diplomats seek to put their
adversaries in corners and bid against each other for the support of the
wretched of the earth. May not such an amoralist teach us something
about the motivations and significant conditions of assertions about
human rights, and thus help us to understand what goes on in the heart
and nerve centers of the world?

QUESTION 2

Our second question, again, might be answered by any philosopher, even
by one who thinks that ethical discussion does not consist of true or false
statements, any more than chess. But if ethical discussion is a game, with
influences upon human behavior constituting the stakes, it is at least an
important and exciting game. And we can certainly ask: How do people
in fact reach agreements on basic objectives? Is the shift in language from
"I want" to "You and I each have a right" a part of the process of over-
coming our egocentric predicaments, and perhaps also our ethnocentric
and politicocentric predicaments? Does not civilized society rest in large
part upon the distinction that most of us learn in childhood between
wanting something and recognizing the right of another to grant or with-
hold that which is desired? What is there about the process of rational
discussion that can lead us not only to change the desires of others but
even to curb our own desires, and thus reach agreements where hostility
once existed? Surely this is a question on which any philosophy of human
nature should have light to shed.

172

HUMAN RIGHTS

QUESTION 3

My third question is again addressed to cynics and skeptics as well as
to believers in the existence of moral knowledge. Suppose we begin with
the cynical observation that language is an invention for concealing
human thought. We note then that some words carry remarkable powers
in this direction. For example, in the "Universal Declaration of Human
Rights" on December 10, 1948, some 48 nations agreed that nobody
should "arbitrarily" be deprived of his property (Article 17) or his na-
tionality (Article 15) or be subjected to "arbitrary arrest" (Article 9) or
"arbitrary interference with his privacy" (Article 12). Does such an agree-
ment mean more than a statement that we are against sin? Doesn't the
use of the word "arbitrary" in such clauses constitute the clearest evidence
of the wide diversity that exists in the world today as to what can prop-
erly justify invasions of privacy, arrest, expatriation, or the expropriation
of private property? And from this perspective we may ask: How do
people use language to conceal disagreements on basic objectives? Are
there some terms like "arbitrary" or "reasonable" which can serve us as
semantic guide-posts to the areas of significant disagreement on the con-
tent of human rights? Certainly, a sophisticated philosophy of language
should be able to cast great light on the actual extent of human agree-
ment and disagreement.

QUESTION 4

There is a fourth question on which a practicing lawyer may appeal to
philosophers for help without limiting his appeal to those who take ethics
seriously as a field of true or false opinions. That is the question which
is integral to any philosophy of history, and basic to any philosophy of
legal history, the question, namely: How do the social arrangements that
we call rules of law come into beingf The idea of a universal human
right, I take it, comes to mankind only after a long history of family
rights, tribal rights, and other rights limited to particular groups. One
finds perhaps the first adumbration of the idea of human rights in the
words of a great law teacher: "The stranger that sojourneth with you
shall be unto you as the home-born among you, and thou shalt love him
as thyself; for ye were strangers in the land of Egypt/' 1 Somewhat the
same idea is implicit in the Aristotelian doctrine of natural rights, espe-
i. Leviticus 19:34.

173

LOGIC, LAW, AND ETHICS

daily in its stoic interpretation. But only with the union of the Hebraic
and Hellenic traditions in scholastic philosophy do we find the idea of
human rights put forward in all its boldness, most eloquently, I think,
in the discourse of Francisco Vitoria, De Indis, in 1532, with its insistence
that American Indians, Moslems, and other unbelievers, living in sin,
have certain rights just because they are human. Kant, in 1784, in his
Idea of a Universal History from a Cosmopolitical Point of View> with
uncanny gifts of prophecy, described the events of our day, the fumbling
and halting efforts at agreement among peoples in conflict. These efforts
he saw as a final projection, upon the international sphere, of that dialec-
tic process by which man's "unsocial sociability" hammers agreement out
of natural antagonisms and thus begins "to arrange for a great future
political body, such as the world has never yet seen." Have 168 years of
second thoughts added to Kant's vision of the events of our day or to
Vitoria's expression of basic human aspirations?

QUESTION 5

The questions put so far are not specifically ethical, although they may
illumine our understanding of the events on which some of us seek to
form ethical judgments. There remain some questions which are spe-
cifically ethical and which will therefore be dismissed as nonsense by those
who deny the possibility of knowledge of the good. Now, whether or not
goodness is relative, certainly nonsense is relative. Perhaps a recognition
of the relativity of nonsense may save us from the wasted effort of seeking
wisdom concerning ethical truth or modern art from those who consider
ethical truth or modern art special forms of nonsense. Let me then limit
my remaining questions to those who can conceive the possibility of
true or false ethical judgments, and I include in this category relativists
as well as absolutists, since even a relativist's value judgments are true
or false when his moral perspective or field is fully defined. The first of
these specifically ethical or meta-ethical questions is simply: What ethical
implications follow logically from the assertion or denial of any given
human right* Is there, for example, a difference between the goodness of
life and the right to life? Surely, if the logical analysis of ethical systems is
a proper part of philosophy, philosophers ought to be able to show how
a system qualifies or defines the propositions it contains, and if philos-
ophers can do this they can surely help a practical lawyer to avoid the
waste of effort that is inherent in the pursuit of a plurality of mutually
incompatible ideals.

HUMAN RIGHTS

QUESTION 6

The next basic question on which I and many others look for light from
ethical philosophers is the question: What sort of evidence can establish
a human right? Even if we agree that no formulation yet achieved of
human rights is entirely accurate, can we say, at least, that some state-
ments are more inaccurate than others? And if so, which? If we agree that
Jones has no right to live, does this throw any evidenciary light on the
proposition that all men have a right to live? Or can we blithely accept
both propositions as true? And can we then charge any logician who re-
jects this happy tolerance with usurpation of judicial functions or with
contempt of court? Or, to put the matter more generally, by what scien-
tific, unscientific, or pre-scientific, procedure can we achieve greater ac-
curacy in our further formulation of ethical judgments in the field of
human rights?

QUESTION 7

We come finally to the $64 question, to which all our other questions are
somehow preliminary: Are there any human rights, and if so, what are
they?

Now it may be supposed that only some extraordinary coincidence
would lead philosophers who disagree as to the meaning of the word
"right/' and disagree as to the criteria for testing ethical truth, to any
consensus as to the content of human rights. But this would be an over-
hasty assumption. If we take, for example, the proposition in Article I
of the "Universal Declaration of Human Rights" that "all human beings
. . . should act towards one another in a spirit of brotherhood," I think
we are likely to find Saas proposition generally defended by utilitarians
on the ground that in the long run more human misery is avoided by
brotherly regard for other humans than by any contrary principle. We
are likely to find Thqmists, I think, generally supporting the brother-
hood principle on the further ground that we are all under a divine duty
to recognize each other as children of a single heavenly Father. The
Hegelian proponent «f self-development as the highest human good may
join in the consensus on the ground that unfraternal hatreds impede the
human development of both the hater and the hated. Perhaps the Yogi,
if not the Commissar, inay join the consensus on the ground that the
sense of egocentric individuality is an illusion, and that the sense of

LOGIC, LAW, AND ETHICS

union, dimly perceived in the notion of brotherhood, is a necessary ap-
proach to understanding and to the peace that passeth understanding.
But whatever the different paths that lead us together, and whatever may
be the further paths by which we shall separate when we come to pass
judgment on pressing political controversies, the fact that today so many
different philosophies can find even a small area of common intersection
and moral consensus, seems to me to be one of the great significant facts
of our age. To explore that significance seems a task worthy of all our
efforts.

176

Reviews

LAW AND THE MODERN MIND

Law and the Modern Mind is the most provocative stimulus to thinking
on fundamental legal problems that has appeared in the Anglo-American
literature of jurisprudence since Dean Pound's Spirit of the Common
Law. Mr. Frank, himself a practicing lawyer, has tackled these problems
in a thoroughly practical way. The significance of precedent, the relation
of opinions to decisions, the problem of rule and discretion, the nature
of law, these and a dozen other foci of legal controversy are approached
with a persuasive awareness of the factual context in which these problems
assume real significance. A lively imagination, a remarkable facility for
coming suggestive expressions, and a speaking acquaintance with the
principal works of his contemporaries lend Mr. Frank's volume a dash
and sparkle rather shocking to one who associates jurisprudence with the
sedate commentaries on Austin and Maine which appear In England
about once a year. All this is not to suggest that Law and the Modern Mind
can be swallowed and digested as it comes from the press. It must be
washed and peeled, and there are unripe and over-ripe parts to cut out;
it must be boiled and mashed and seasoned with a good deal of salt be-
fore it can safely be entrusted to a moderately sensitive legal stomach.

Frank's fundamental thesis is that the law is not and ought not to be
certain and predictable and that those who think otherwise are simply
infantile. Down through the ages, we are told, men have associated law
with something eternal which persists through changes of circumstance
and which somehow lies deeper in the nature of the universe than the
ephemeral decisions of judges and juries in particular cases. When counsel
argue, they assume that there is an already existent rule of law which
makes it the plain duty of the court to decide in their respective favors.
The judge in writing his opinion will reaffirm one of these alleged duties
to the past. Even legal philosophers who know that judges make law, e.g.,

Published as a review of Jerome Frank's Law and the Modern Mind in American
Bar Association Journal, 1931.

LOGIC, LAW, AND ETHICS

Demogue, Pound, Wurzel, think it well to maintain this picture of the
court finding pre-established law, lest judges lose a sense of responsibility
and laymen a sense of security. So we go ahead and define law as some-
thing fixed and discoverable, whether it be the perfection of reason, or
the dictates of God, or the voice of the Zeitgeist, or the command of the
sovereign, or the rules that have been laid down by courts. Then we
cover up the uncertainties in our legal "system" by calling the work of
juries a decision of facts, by refusing to look behind the distorted view
of the facts which the judicial opinion generally presents, by putting our
legal rules into terms that sound the same but mean quite different things
in different cases, and by calling decisions that do not fit our wholly un-
official patterns wrong (as if this somehow made them vanish). How is it,
asks Frank, that lawyers and jurists, a class distinguished for superior
mentality, should believe or want to believe in this strange mythology?

The answer to this question our author finds in the fact that all lawyers,
jurists, and laymen were, before birth, rather more adequately provided
for in the way of food and lodging than they have been since, that most
of them after birth discovered fathers stronger and wiser than themselves,
and that in later years a yearning for primeval security, comfort, and
dependence brings about an emotional and irrational attitude towards
the Law as a Father-Substitute, wise and powerful with superhuman wis-
dom and power, promising to those who submit to It security from the
hazards of life. The thesis is, of course, Freudian, and its elaboration is
definitely reminiscent of Krutch's Modern Temper. Like the metaphy-
sician who finds behind the passing flux of phenomena an eternal and
harmonious realm of Platonic essences, like the orthodox religionist, the
believer in legal certainty is a sort of glorified Mammy-singer yearning
for a Kentucky home which no longer exists.

In all this Mr. Frank has missed a large part of human wisdom. Granted
that the actual certainty of the legal order has often been greatly overesti-
mated, granted too that certainty is often purchased at the expense of
"justice in the particular case," granted as well that the human demand
for security has deep and sub-rational roots in childhood and possibly in
pre-natal existence, it does not follow that this demand is undeserving of
legal protection. Uncertainty, as our author insists, is adventure, but ad-
venture is hunger and thirst and heart-ache and death. Civilization rests
upon a vast, intricate complex of expectations and prophecies, and only
the predictable behavior of those bodies to which society has entrusted
its collectivized physical force can put iron into that scaffolding of hopes
and reliances. Even from the standpoint of "justice in the particular case/'
uniformity of decision is the only practical guarantee against the tyranni-

BENT HAM'S THEORY OF FICTIONS

cal exercise of prejudice which our author is quick to recognize as the
outstanding defect of the jury but which is strangely missing from the
picture he draws of judicial discretion freed from its bonds to the past.

The questions which Mr. Frank has put to us are not as simple as the
answers he has offered. Granted that much nonsense has been uttered in
the name of legal logic, eternal principles, and "law apart from decisions/'
there is, as our author frequently recognizes in the cool retrospection of a
footnote, something beyond decisions, in terms of which we can criticize
decisions. There is something to which the judicial "hunch" should con-
form; there are some patterns to which it does conform.

A cavalier disdain for the compromises between certainty and sensitive-
ness which have appealed to legal philosophers like Pound and Cardozo
lends a picturesque clarity to our author's assaults upon "rules of law,"
"legal scholasticism/' "judicial somnambulism/' and "Bealism." But an
insistence upon the omnipresence of uncertainty and the universal value
of discretion leaves Mr. Frank in a fort which he has ably demolished. It
is ancient wisdom that only an absolutist can deny all absolutes. And he
will certainly be wrong.

BENTHAM'S THEORY OF FICTIONS
and THE THEORY OF LEGISLATION

Talleyrand's comment on Bentham in 1830 still rings true: "Though all
the world has stolen from him he remains still rich." Few indeed are the
characteristic ideas of contemporary legal thought that cannot be found
set forth in his writings. The programs of "sociological," "institutional/*
"scientific," and "realistic" jurisprudence are all permutations and com-
binations of four principal Benthamite theses: (i) that the meaning of
legal concepts and legal rules is to be found not simply in their systematic
relations to other concepts and rules but in their human consequences;
(2) that legal science is therefore dependent for its basic materials upon
social statistics and upon all the social sciences; (3) that the reality of a
rule of law consists in its enforcement and not in its goodness; (4) that
judges, at least under the Common Law, make the law they are supposed
to "discover" and "enforce."

Mr. Ogden's two volumes, Bentham's Theory of Fictions and The
Theory of Legislation, are generously "introduced" and annotated in the
attempt to indicate how much of the collected material is still on the front

Published as a review of C. K. Ogden's Bentham's Theory of Fictions and J. Ben-
tham's The Theory of Legislation (ed. Ogden) in Yale Law Journal, 1933.

LOGIC, LAW, AND ETHICS

line of legal and philosophical progress, how much of it is now accepted
and taken for granted, how much of it is outgrown, how much of it stands
refuted. The analysis is carried out with patience and with imagination.
Unfortunately, however, the traditional English insularity in law and
philosophy circumscribes the scope of Mr. Ogden's efforts. The discussion
of functionalism and operationalism in philosophy is carried on with com-
plete disregard of the work of Rudolf Carnap, Charles S. Peirce, John
Dewey, and C. I. Lewis, and with only the most perfunctory reference
to Ludwig Wittgenstein. In fields more strictly legal one finds the English
non-recognition policy towards American law reviews in full sway. A
few casual references to works of Duguit, Stammler, Petrazicki, Cardozo,
Pound, Kocourek, Hutchins, and Zane constitute the only explicit recog-
nition of modern legal thought beyond British frontiers on the subjects
of Bentham's writings.

The Theory of Legislation, compiled by Dumont from Bentham's
scattered manuscripts, translated by Hildreth, and now edited by Mr.
Ogden, presents, at least in outline, all the fundamental tenets of Ben-
tham's theory of law and law reform. Dicey scarcely exaggerated when he
said that "the history of legal reform in England in the nineteenth cen-
tury is the story of the shadow cast by one man, Bentham"; and the force
of Bentham's contributions to enlightened law reform is not yet spent.
Today a good deal of Bentham's individualist faith in the ultimate coin-
cidence of self-interest and social welfare seems definitely reactionary, but
the name of radical cannot yet be denied to one who advocated the use
of the inheritance tax to equalize wealth and preached the duty of the
state to provide a minimum of subsistence for all its citizens. And a Fabian
Socialist gives Bentham no more than his due when he writes: "He had
espoused the cause of every struggling class; he had advocated freedom for
every struggling people; he had fought for every persecuted sect." x

If contemporary jurisprudence has advanced beyond Bentham in im-
portant respects, having at its disposal a more adequate body of social
theory and social fact, there are still seminal ideas in The Theory of Legis-
lation which can fertilize arid wastes of contemporary controversy.

Discussion of the imperative element in law has not yet digested Ben-
tham's perception that laws, such as those of inheritance or of the passage
of title in sales, are humanly significant because they are footnotes to the
criminal law, explaining the command that A refrain from taking B's
property. When the essential incompleteness of most rules of property
law, of the law of domestic relations, and the like is generally recognized,
American law schools may outgrow the disdain of criminal law* By visual*

i. Victor Cohen, Jeremy Bentham, Fabian Tract No. 221 (1927), p. 18.

180

BENTHAM'S THEORY OF FICTIONS

izing the criminal sanctions which every legal rule engenders, they may
see more clearly the coercive, nonvoluntary aspects of law and the need
for social justification of such coercion.

We have heard a good deal, in the last twenty years, of the need for
examining the consequences of legal rules, but "sociological jurispru-
dence" remains in large part a pious program rather than a record of
achievement. At the root of this failure is the lack of any definite criterion
of importance which will dictate which of the infinite consequences of
any legal rule or decision deserve to be investigated. Such a criterion of
importance can be supplied only by an ethical system. But thus far, none
of the advocates of sociological jurisprudence believe in any ethical sys-
tem; or, if they do, no word of it is spoken before company. It is Bentham's
peculiar virtue not to have been ashamed of the ethical system in which
he believed. His analysis of the effects of legal rules upon the happiness
and suffering of individuals thus gives a constant and precise focus to his
vision of what the law actually is, as well as to his vision of what the law
ought to be. Despite the limited social data at his disposal, Bentham's
functional analyses of rules of incest, of property distribution, and of the
choice of penalties, are unsurpassed contributions to sociological juris-
prudence.

A third contribution to contemporary legal thought contained in The
Theory of Legislation is the emphasis upon law-enforcement and law-
obedience as the life of the law. Obedience to law presupposes general
legal education (whence the advantage of codification). Education, to be
effective, must be dramatic (whence the advantage of "characteristic"
punishments). Above all, the problem of enforcing a law must be seen
as a problem in diminishing the opportunities that permit and the social
influences that induce its infraction.

Bentham's Theory of Fictions is an attempt to make explicit the philo-
sophical method that underlies Bentham's legal thought. Though the
scattered writings which Mr. Ogden has pieced together fall far short of
presenting a coherent philosophical theory, they do foreshadow in strik-
ing terms the most important philosophical doctrines of the last fifty years.

The focus of Bentham's attack, in his development of a theory of fic-
tions, is in the realm of legal nonsense. The attack is simple enough when
it is directed against the ancient and venerable nonsense of sham bail,
common recovery, trover, ejectment, and the whole firm of Doe, Roe, Jack-
son, and Titmouse. But Bentham finds more insidious nonsense in the
common use of such concepts as right, duty, property, and title. The
task of distilling meaning out of masses of ambiguity, however, demands
logical instruments not found in the traditional logic with which Ben-

181

LOGIC, LAW, AND ETHICS

tham was familiar. Nothing daunted, Bentham went ahead to create what
is now called the functional approach. Beginning with those aspects of
common experience which to him seemed most indubitable, bodies exist-
ing in time and space, Bentham challenged the rest of the intellectual
world to show its legitimacy by tracing its descent from such sensible ob-
jects. The challenge is directed not only at so-called legal fictions, but at
all qualities, classes, and relations.

To call everything fictitious that is not a definite, particular, physical
thing is, of course, nominalism. It would be easy to show that many of
Bentham's statements on this score lead to patent self-contradiction. But
it is only fair to recognize that Bentham's nominalism is methodological
rather than categorical, a rule of evidence rather than a rule of substance.
It amounts, in effect, to setting up a rebuttable presumption that any term
which does not directly refer to some existing physical object is nonsensi-
cal, i.e. devoid of meaning. The presumption can be rebutted by a defini-
tion of the challenged term as a construct or function or "psychic arrange-
ment" of terms that do have a direct physical reference. The concept of
a legal right wins admission to the category of reality when it is defined
as a function of judicial behavior, as "a disposition on the part of those
by whom the powers of government are exercised, to cause him to possess,
and so far as depends upon them to have the faculty of enjoying, the
benefit to which he has a right." (p. 119). One thinks of the origin of
"realistic jurisprudence" in the phrase of Holmes, "A right is but the
hypostasis of a prophecy," and remembers that Holmes is the child of
Austin, and Austin the child of Bentham.

There will be disagreement enough, among philosophers and among
jurists, as to the mechanics and the direction of this analysis which sepa-
rates nonsense from meaning. The physical objects which to Bentham
seem the primary base of intellectual operation appear to many philoso-
phers to be themselves complex logical constructs of something simpler,
as, for example, events or sense-data. The joys and pains to which Ben-
tham tried to reduce the analysis of legal rules appear to many jurists to
be themselves unreal fictions. There are intimations in Bentham's Theory
of Fictions that no absolute answer to this question of the ultimate nature
of analysis is possible. But even if each of us must build the world with a
different set of blocks, there are some common laws of architecture that
Bentham and Holmes and their followers are formulating in law, while
philosophers, mathematicians, economists, and sociologists pursue their
own versions of the "functional approach/'

182

CIVILISATION AND LAW

CIVILISATION AND THE GROWTH OF LAW

For at least twenty-five centuries, the opening paragraph of this volume
informs us, men have tried to answer the question, "What is Law?" Ap-
parently they have not succeeded. Perhaps this is because so many of them,
like Dr. Robson, have failed to understand the question they were trying
to answer. Logically, a definition of law may be either a resolution (which
is neither true nor false) to use the word "law" in a certain fashion, or a
description (which is factually correct or incorrect) of something that has
already been identified. Dr. Robson, however, searches for a unity in all
the many things that men have thought of when they used the word
"law." This unity our author finds on the level of the transcendental free-
dom of the will, according to Kant.

He is emphatic in his conviction that Austin's simple definition of law
as commands enforced by governmental sanctions is an "unpleasant brew"
(p. 293). This volume leaves us with a picture of law that includes the
"laws of tennis," the suicide customs of the Trobriand Islanders, and the
laws of mathematics and biology. This peculiar lumping of different sub-
jects is justified in terms of the fashionable metaphysical doctrine that all
rules and principles are alike subjective figments of the human mind. The
Robson brew may be pleasanter to take than the Austinian, but in the
cold gray dawn of the morning after, one longs for the crystal clear water
of Austin, who at least had the logical acuteness, together with his teacher
Bentham and his American disciples, Gray and Holmes, to distinguish the
peculiar characteristics of the judicial process, to define in terms of ju-
dicial consequences such concepts as duty, privilege, property, and con-
tract, to illuminate practical legal problems through the proper use of
such realistic definitions, and to separate legal description from ethical
criticism, to the lasting benefit of both activities. But despite his verbal
rejection of Austin, Dr. Robson frequently invokes Austinian doctrine,
e.g. when he seeks to separate the "legal" ordinances of the Book of Exo-
dus from those that are "purely moral" (p. 39).

No doubt, it is as unjust to criticize this book in terms of its conclu-
sions as it would be to ask for one's money back because the merry-go-
round brought him back to the place from which he started. The whirl is
interesting enough. We begin with the Code of Hammurabi, the Laws of
Manu, and the themistes of Homeric Greece, follow the career of the
Twelve Tables, catch brief glimpses of the Pentateuch and the Koran,

Published as a review of William A, Robson's Civilisation and the Growth of Law
in Columbia Law Review, 1936.

LOGIC, LAW, AND ETHICS

wrestle with civil procedure before the Icelandic Thing, watch the "law
in action" of Malinowski's Melanesians, read the curses that protect the
temple of Kak, shudder at the legalities of the Inquisition, and rejoice in
the final achievement of a rational attitude towards law in the free de-
mocracies of contemporary Europe and America. It is perhaps inevitable
that legal history on so grand a scale should merge into mythology, and
the reader may take with a pinch of salt such statements as: "there was
as yet (in early Greece) no conception of customary law" (p. 27); that
inheritance through the female line was peculiar to Roman law (p. 221);
or that the theory of the social contract, as developed by Hobbes, Locke,
and Rousseau was simply an imaginative fantasy based upon ignorance of
history (pp. 258-64). A certain genial optimism, rather than strict concern
for facts, enables Dr. Robson to record the disappearance of such barba-
risms as the use of torture to secure confessions or the resolution of dis-
putes through the combat of hired champions. And the student of national
affairs may not be entirely satisfied with Dr. Robson's assurance (pp. 109-
110) that ancient magical practices of determining the validity of laws by
looking at the skies on a clear moonless night or by examining the entrails
of a fowl have long since been abandoned.

As befits a product of the London School of Economics, this volume
lacks the stale and musty smell that envelopes most modern English writ-
ings on jurisprudence. As a serious attempt to mark the place of legal
thinking, through the ages, in the stream of human thought, this volume
represents an encouraging emergence from a certain provincialism in the
English bar which our author has aptly characterized: "On the whole,
English legal thought since Bentham has run in narrow grooves, re-
maining crabbed and 'practical' in the worst sense of the word, unimagi-
native and devoid of any philosophic, ethical, or sociological background.
... It is scarcely too much to say that jurisprudence hardly exists in
Great Britain. Philosophy and law are barely on speaking terms, while
sociology and law are strangers who have never even met (p. 254)."

Indeed, Dr. Robson has so far abandoned the tradition of British legal
scholarship as to read some of the writings of such American legal thinkers
as Roscoe Pound, Morris R. Cohen, and John Dickinson. While there is
as yet, unfortunately, no hint of intellectual contact with the contribu-
tions of Holmes, Gray, Brandeis, Cardozo, Radin, Llewellyn, or Frank
within the fields treated by this volume, it is only fair to say that Civilisa-
tion and the Growth of the Law represents a great advance towards mo-
dernity in English legal thinking.

184

PRINCIPLES OF SOCIOLOGY OF LAW

FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY
OF LAW

The publication of Ehrlich's Grundlegung der Sodologie des Rechts
in 1912 marks a significant point in the development of sociological juris-
prudence. Professor Moll's translation of this modern classic should
stimulate criticism and clarification of the fundamental ideas that under-
lie this approach.

Ehrlich's basic thesis is that law is not a product of courts and legisla-
tures, but rather a product of society. Society, he shows, sometimes has
little regard for the content of statutes and judicial decisions. Statutes
and decisions which are thus disregarded are not "really" law. On the
other hand, many rules of conduct have the force of law even though they
do not emanate from any state and are not enforced by any court. Law
without judges or sheriffs is found in the realm of international relations.
It is found in the many fields of constitutional and administrative law
that never come before a court. Even in the field of private law many
rules are established and enforced by social sanctions other than those of
the political state.

One performs one's duties [Ehrlich declares] as father or son, as
husband or wife, does not interfere with one's neighbor's enjoyment
of his property, pays one's debts, delivers that which one has sold,
and renders to one's employer the performance to render which one
has obligated oneself. The jurist, of course is ready with the objec-
tion that all men perform their duties only because they know
that the courts could eventually compel them to perform them. If
he should take the pains, to which, indeed, he is not accustomed, to
observe what men do and leave undone, he would soon be convinced
of the fact that, as a rule, the thought of compulsion by the courts
does not even enter the minds of men. In so far as they do not simply
act instinctively, as indeed is usually the case, their conduct is deter-
mined by quite different motives: they might otherwise have quarrels
with their relatives, lose their positions, lose custom, get the reputa-
tion of being quarrelsome, dishonest, irresponsible persons (p. 21).

Law, Ehrlich asserts, consists not of legal propositions but of legal rela-
tionships, institutions, and arrangements that make up the inner order
of associations and, in general, the order of society. This we recognize

Published as a review of Eugen Ehrlich's Fundamental Principles of the Sociology
of Law in Illinois Law Review, 1937.

185

LOGIC, LAW, AND ETHICS

without question when we discuss the law of other times and places. The
legal historian, Ehrlich notes,

states the rules according to which, in antiquity or the Middle Ages,
marriages were entered into, husband and wife, parents and children
lived together in the family; he tells whether property was held in-
dividually or in common, whether the soil was tilled by the owner
or by a lessee paying rent or by a serf rendering services; how con-
tracts were entered into, and how property descended. One would
hear the same thing if one should ask a traveler returning from for-
eign lands to give an account of the law of the peoples he has become
acquainted with. He will tell of marriage customs, of family life, of
the manner of entering into contracts; but he will have little to say
about the rules according to which lawsuits are being decided (p. 1 1).
The legal norm according to which legal disputes are being de-
cided, the norm for decision, is merely a species of legal norm with
limited function and purpose (p. 24).

On the basis of this approach, Ehrlich marks out the boundaries of
legal sociology. He shows how studiously this no-man's land of the living
law has been avoided by earlier jurists, and how greatly this avoidance
has impoverished legal science. In effect, legal science has surrendered the
problems of law enforcement, of the limits of effective legal action, and
of the actual sources of law, to the domain of superstition, fanaticism,
and fantasy. Legal historians, failing to foster an understanding of the
economic and social relations out of which legal propositions arise, have
produced a kind of jurisprudence that is "antiquarian rather than his-
torical" (p. 327).

Ehrlich's thesis is important, I think, and his elaboration of it is fruit-
ful. Yet I cannot help feeling that the system of jurisprudence which
Ehrlich builds is vitiated by logical confusion, lack of historical perspec-
tive, and ethical naivet£.

In the first place, the brunt of Ehrlich's attack is against certain defini-
tions. Not realizing that definitions are acts of will, which are neither
true nor false, he marshals evidence from all climes and ages to prove
that his definitions of "law" and "courts" are true and that all other defi-
nitions are false. This is a thankless task that is always involved in more
or less obvious circular reasoning. The upshot of his argument is to ob-
scure the important distinctions between courts and other instruments of
social control, and between law and other forms of social regulation* Thus
the author of this work, insisting that courts are not necessarily organs of
any state, declares: "Considered functionally, the court is a person or a

186

PRINCIPLES OF SOCIOLOGY OF LAW

group of persons who are not parties to the controversy and whose func-
tion is to establish peace by the opinion which they express about the sub-
ject matter of the controversy" (p. 121). This definition would include ar-
bitrators, conciliation boards, lexicographers, writers of books on eti-
quette, and public opinion, generally, as it is reflected by a host of special
agencies.

While courts thus merge with all other social institutions for peace-
making, under Ehrlich's terminology, law itself merges with religion, ethi-
cal custom, morality, decorum, tact, fashion, and etiquette. "It is not an
essential element of the concept of law that it be created by the state, nor
that it constitute the basis for the decisions of the courts or other tribunals,
nor that it be the basis of a legal compulsion consequent upon such a
decision" (p. 24). The only definite attempt that Ehrlich makes to dis-
tinguish between law and other types of social regulation is in psychologi-
cal terms: "Compare the feeling of revolt that follows a violation of law
with the indignation at a violation of a law of morality, with the feeling
of disgust occasioned by an indecency, with the disapproval of tactlessness,
the ridiculousness of an offense against etiquette" (p. 165). It is hardly a
useful definition of law that would compel us, in deciding for instance
whether the duty to include gambling profits in an income tax return is a
legal duty, to first conduct a statistical survey of emotional reactions of
"revolt," "indignation/5 "disgust," etc.

Ehrlich's logical confusion with respect to the nature of definitions
leads him to spend a good deal of time with the ancient riddle, beloved
of Continental jurists, "Which came first, the law or the state?" The
logically sophisticated will recognize that the answer to this riddle, like
the answer to the egg-and-chicken riddle, depends upon the definitions
with which we begin, and that without such definitions there is no
answer, because there is no question.1 If we define "the state" as a product
of certain social relationships and call these relationships "law," then
we make "the state" secondary. If we define "law" as that form of com-
pulsion exercised by certain organs of a "state," then "the state" is pri-
mary. In either case argument is futile and foolish.

Behind the metaphysical riddle of law and the state, however, there
lies an empirical problem of vital importance: To what extent do states
act in a creative way in formulating legal institutions and rules of law,
and to what extent do states merely rubber-stamp what other organs of
society have created?

Now this is a question that must be answered differently for different
times and places. Perhaps empirical studies would show that the social

i. Cf. F. S. Cohen, "What is a Question?" [above, p. 3].

187

LOGIC, LAW, AND ETHICS

process of law making and law enforcement will be exercised primarily
through state organs only where the state represents the most important
forces and unities of a given society. A different condition may obtain
when the state is simply a military alliance of societies with different races,
economies, and customs, as was the Austro-Hungarian Empire of which
Ehrlich was a subject. Under such a state structure, it is quite understand-
able that a good deal of state law will turn out to be law on paper, without
much effect on the living law of certain regions (pp. 161, 370-1). Likewise,
where a single society is broken up into numerous independent states, the
society is likely to develop sources of law independent of these political
units. This was the case in Germany before 1870, and perhaps goes far to
explain the high development of a "common law" based on Roman
sources, independent of the legislation of the German states. It is perhaps
the case in the United States today, where the constitutional principle
that each state has its own independent system of private law (outside the
field of bankruptcy) no longer corresponds to the needs of a national
social order for uniform legal relations, particularly in commercial fields.
What we see, as a result, is the development of a national commercial law,
based on the doctrines of law teachers, on the work of such private organ-
izations as the American Law Institute and various committees for uni-
form state legislation, on the tendency to expand the jurisdiction of the
federal courts and on the tendency of those courts to disregard local
peculiarities of unwritten law or to restrict radical innovations in the
written law on constitutional grounds. In this development of a national
commercial law, our state legislatures are, on the whole, rubber stamps
rather than creative forces. The true creative forces would be found in
commercial relationships and institutions that transcend state lines. To
recognize these empirical variants in the problem of the relationship be-
tween law and the state is to substitute a thorough-going sociological ap-
proach for Ehrlich's metaphysical riddle (or, more accurately, unmeta-
physical riddle).

In his effort to show that semper et ubique the state plays a secondary
role in law-making and law enforcement, Ehrlich does some violence to
the facts of law administration. When he states, for instance, that com-
pulsory execution "is of social significance only in the case of obligations
to pay money" (p. 68), he overlooks the important role of injunction,
mandamus, replevin, judgments of ejection, and other non-pecuniary
decrees on which a large part of the common law as well as of the Con-
tinental civil law is based. Several equally exaggerated statements of law
and legal history might be cited.

It is most unfortunate that Ehrlich, in championing the sociological

1 88

PRINCIPLES OF SOCIOLOGY OF LAW

approach with all fervor, should limit the scope of that approach by ex-
cluding the state itself from society. The dichotomy repeatedly drawn be-
tween the state and society (pp. 121, 356, 366, 376, 400) is wholly unjusti-
fied. By viewing the state as an organ or structure of society,2 we are en-
abled to apply sociological analysis not only to the customs of bankers or
peasants but also to the customs of judges. It is in this respect, particularly,
that modern American jurisprudence has made a great advance beyond
Ehrlich.

Ehrlich's discussion of the relation between law and justice gives no
evidence of careful thinking. When our author is not discussing ethics
he passes ethical judgments upon various types of legislation without
bothering to state the grounds of his judgment. When he does try to
formulate a definite concept of justice, he flounders between two notions,
neither of which is profound. At times, he refers to justice as the summa-
tion of tendencies in the actual law, i.e., as the law of the future (p. 204) —
a bit of pious optimism for which, in the year 1912, it was not thought
necessary to present any evidence. Again, he refers to justice as the basis
on which issues are decided by "disinterested" observers (pp. 200, 206-7).
This notion will not stand logical scrutiny. The greatest judges are pas-
sionately interested in what they conceive to be principles of justice and
commands of duty. A "disinterested" observer is not one without interest
in a moral issue, but one whose interest is confined to the morally im-
portant aspects of the issue rather than to morally irrelevant aspects such
as the birth and wealth of the parties. But what aspects are morally im-
portant and what aspects are morally irrelevant? When are the birth and
wealth of the parties proper considerations in deciding a case? These
questions cannot be answered without a theory of values. It is logically
fallacious, then, to derive a theory of values from the judgments of a
supposed disinterested observer.

Whether Ehrlich's thesis is true or false or logically confused and
neither true nor false, it cannot be denied that his approach brings an
important contribution to the theory and the practice of law.

To the teacher and student of the law Ehrlich presents a rich category
of material that has been largely ignored alike by those who conceive law
as a distillate of decided cases, and by those who conceive it as a web
of juristic theory, i.e., the category of the "living law/' The "living law"
can be found in the contracts men make, written and unwritten, in the
written or unwritten constitutions of the various associations in which
people function, from the family to the modern business corporation, in

2. ". . . the state is the form in which the people have become organized." Collin,
J.f dissenting, in People v. Crane, 214 N.Y. 154, 188, 108 N.E. 427, 438 (1915).

1 80

LOGIC, LAW, AND ETHICS

the actual legal relationships and institutions that make up the social
order. In the twenty-five years since the publication of Ehrlich's book, a
few of our law schools have taken hesitant steps in this field of legal
source-material. Llewellyn's case book on sales, Berle's on corporate
finance, and Powell's on future interests and trusts 3 point the way to a new
type of case book and a new type of legal study.

Ehrlich's concept of "living law" is as important to the law-maker as
it is to the teacher or student. The law-maker, whether he sits in a legis-
lature, on the bench, or in a law office, is interested only incidentally
in the words of statutes and judicial opinions. He is interested primarily
in achieving some practical result in the field of social relations. To do
this, he must shun the "naive dilettantism, which is satisfied in its own
mind that all that is necessary in order to abolish an existing evil is to
forbid it" (p. 411). He must recognize "that the intent of the author oi
a statute is a matter of absolute indifference so far as its effects are con-
cerned. Once in force, it goes its own way" (p. 375). He must appraise
the obstacles to enforcement, on the assumption that state-force, in the
long run, can be used only against small minorities (p. 76). He must
take account of an existing situation in society, as well as of an existing
legal precept. If one is to consider the development or revision of a law
of inheritance, it is not enough to know decided cases and the words oi
statutes. "First of all it would be necessary to investigate all the living
law that is contained in testamentary provisions, in parental divisions oi
inheritance, in transfers of property during the lifetime of the donors, in
settlements out of court by the heirs, and to discover its guiding prin-
ciples" (p. 52).

In this respect Ehrlich's volume developed a standpoint which Pound
was at the same time brilliantly presenting in a series of articles in
American law reviews.4 Of major importance for the art of law-making
is Ehrlich's analysis of the gap between "law in books" and "law in action"
(to borrow the words of Pound), his analysis of the role of associations
in making legal norms effective, his explanation of the inadequacy oi
legislation for the protection of oppressed groups wherever such legislation
was not supplemented by special administrative organs (pp. 368, 372)
More generally, Ehrlich shows, laws and decisions owe their force tc
social agreements. This fact sometimes appears in the form of the law,

3, Llewellyn, Cases and Materials on the Law of Sales (1930); Berle, Cases ant
Materials on the Law of Corporation Finance (1930); Powell, Cases and Materials OK
the Law of Trusts and Estates (1932-33),

4. See particularly, "Mechanical Jurisprudence" (1908) 8 Col, L. Rev. 605; "law ir
Books and Law in Action" (1910) 44 Am. L. Rev, is.

190

PRINCIPLES OF SOCIOLOGY OF LAW

". . . the oldest statutes of the German kingdom, the Landfrieden, . . .
had to be sworn to and had validity only for those who had sworn to
them. . . . Even in England, a statute was agreed upon between King
and Parliament like a contract*' (p. 148). Even where the form of the
agreement is not observed, the measure of actual consent required for the
maintenance of any legal rule is very great. "On pent tout faire avec les
baionettes, excepte s'y asseoir" (p. 373).

Finally, Ehrlich's approach is of value to the practicing attorney.
The attorney who is more than a good lawyer is interested in forecasting
to his client the future course of certain ventures and transactions, in
weighing future risks, in avoiding future dangers. This means that he
must know not only the state of the law at the moment but the tendencies
of change within the legal order. He must know what aspects of the
law are firmly fixed and what the "growing points" of the law are, and
he must have a good idea of the probable directions of growth. This
volume contributes towards such an understanding. It develops a theory
of the growing points of the law, based largely on Holmes' acute ob-
servations on the relation between law and fact in negligence cases (p.
353). It develops a technique for determining the strength of sub-legal
forces that are pushing to the surface of the law, and for determining
when established rules of law have lost their social roots and thus stand
ready to fall. All this is good medicine not only for legal formalists but
for those realists who view law in atomic terms as the products of judicial
hunches and belly-aches. As Pound justly remarks in his introduction to
this volume, "What to the extreme realist seem individual behavior habits
of individual judges, Ehrlich sees as reactions of the living law upon
formulas and generalizations and precepts which do not or have ceased
to reflect the inner order of significant associations and relations" (p.
xxxiv).

These contributions are substantial, despite the logical, historical, and
ethical inadequacies in Ehrlich's teaching. In fact one may reject in toto
the author's theory of the nature of law, courts, the state, society, and
justice, and yet find guidance in the more concrete portions of the treatise.
Ehrlich himself would deny this, I think. He insists that it is the definition
of law as a product of courts and legislation that has condemned the
science of law to poverty. But one does not have to define law as including
social customs and institutions in order to recognize that these things
are important for the understanding of law — any more than physicians
must define the human body as including its environment in order to
recognize the influence of that environment.

LOGIC, LAW, AND ETHICS

AN INTRODUCTION TO THE SOCIOLOGY OF LAW

If, as Celsus observed some years ago, to know laws is to know force and
power rather than words,1 then the sociology of law, dealing with the
impact of law upon human behavior, should bring light to lawyers,
lobbyists, and statesmen concerning the nature of the materials with which
they work. Above all, the sociology of law should provide instruments for
surveying the consequences of particular rules of law and legal systems.
Such a science might analyze the means by which legal rules and standards
are made known to those of whom law observance is expected, the forces
of public opinion, social pressure, and military power which tend to press
men's actions into conformity with legal patterns, and the countervailing
forces which impel disregard for law. Unfortunately such a science does
not yet exist. Those who read Dr. Timasheff's book with the expectation
of finding a key to a body of knowledge that may illuminate the social
significance of legal rules and institutions will therefore be disappointed.
Those, on the other hand, who would like to build such a body of
scientific knowledge will find a very useful guide in Dr. TimashefFs survey
of gropings and first steps towards a sociology of law.

The preparation of such a guide is a task worth doing and well done,
and it would be captious to criticize the author for not creating the science
to which he promises us an introduction. Dr. Timasheff, however, does
undertake to formulate the questions, concepts, and definitions within
which a sociology of law is to be developed. It is therefore pertinent to
inquire whether he has succeeded in this task.

The general thesis of the volume is that law is the overlapping of ethics
and power. Power is thought of as a general category including "despotic
rule" and "legal order." Ethics is conceived not as a science but as a set
of verbalized social forces controlling the objectives of human endeavor,
and including rules of taste and fashion as well as legal principles. The
area of overlapping is viewed either as that area of ethics which is en-
forced by organized power, or, conversely, as that area of power which is
decorated by ethical precepts. This thesis is elaborated by an analysis,
largely historical, of the operations of ethical precepts (Part II), the
mechanics of power-organization (Part III), and the relations between
these two overlapping areas of social behavior (Part IV).

i. Dig. 1:3:17.

published as a review of N. S. Timasheff's An Introduction to the Sociology of Law
in Harvard Law Review, 1940,

INTRODUCTION TO SOCIOLOGY OF LAW

In its essence, this view embodies the Blackstonian definition of law as
"a rule of civil conduct prescribed by the supreme power in a State
commanding what is right and prohibiting what is wrong." 2 Like Black-
stone, Dr. Timasheff attempts to exorcise by definition those unfortunate
situations in which sovereign power is used to command what is wrong
and prohibit what is right. With equal logical force, an attempt was
once made to do away with miserliness among the French by defining a
sou as a coin to be given to the poor, and it has recently been suggested
that criticism of the Republican Party might be practically banished
by defining that organization as a party comprising all persons who be-
lieve that the United States should remain a republic. Whatever may be
the political usefulness of this form of reasoning, its scientific value is
very slight. Most lawyers and students of law in this country will want
to reserve the right to criticize a given rule of law as immoral or un-
justified or contrary to public opinion while recognizing that the rule
remains law so long as the courts enforce it. Those who take this view
will reject the framework which Dr. Timasheff sets up for legal sociology,
under which it is impossible to determine whether a rule enforced by
the courts is really law until one has tested public opinion. These diffi-
culties with the view that law is a branch of ethics were forcefully pre-
sented by Hobbes, Bentham, Austin, Holmes, and Gray years before the
modern "realists" appeared on the scene, but Dr. Timasheff appears to
ignore such objections.

One of the consequences of the author's attempt to define law without
reference to courts or to the state is that a logical deduction from his
definitions leaves a body of "non-state law" on his hands, which, if I
correctly understand the author, exists as law quite apart from state
action but is always recognized and supported by the state (p. 308). A
set of definitions which denies the name of law to a statute enforced by
the courts if it is contrary to prevailing ethical sentiments, and which,
at the same time, accords legality to "non-state law," will not appeal to
most American lawyers as useful.

It would be silly to criticize Dr. Timasheff for using unpopular defini-
tions so long as his usage is clear and consistent. What does merit
criticism, however, is the author's insistence that definitions other than
his own are logically impossible. Certainly he has not succeeded in show-
ing any logical defect in the Holmesian definition of law as "prophecies
of what the courts will do in fact." 3 Nor does he show that alternative

2. Commentaries * 54-55.

3. "The Path of the Law" (1897) 10 Haru. L. Rev. 457; Collected Legal Papers (1920),
pp. 167, 173.

LOGIC, LAW, AND ETHICS

conceptions of law commonly applied in anthropology are logically
impossible. When, for instance, he asserts that it is "logically impossible"
to define law in such a manner as to include the socially enforced rules
of a primitive society that lacks courts, and at the same time to exclude
social pressures of fashion and custom in the modern state (p. 278),
he only betrays the narrowness of his Aristotelian logical horizons. If,
for instance, one should conceive of law in relative terms as the most
fundamental or the most effectively organized set of conduct-imperatives
in any society, one might with perfect consistency hold that the law of
primitive Cheyenne society is to be found in popular customs of revenge,
reciprocity, and group-aid, but that the law of modern England is to
be found centering in the activities of English courts.

The pseudo-problems involved in the author's attempts to prove or
disprove various definitions of "law," "morals," and other words which
have many useful meanings, are matched by another set of pseudo-
problems concerning the origins of legal institutions. Thus Dr. Timasheff
devotes a good deal of attention to the academic riddle: "Which came
first, criminal law or civil law?" and apparently awards the palm to the
former (p. 70). Nowhere, however, does Dr. Timasheff offer an example
of a rule of criminal law that does not include a civil aspect. One cannot
commit the crime of larceny if there is no law of property to determine
when a man is taking what is not his own, or the crime of adultery if
there is no law of marriage, or any crime at all if there is no law of
persons fixing responsibility upon nations, or clans, or families, or in-
dividual human beings, or human beings who have achieved a specified
minimum age and level of mentality.

The same atomistic viewpoint which enables Dr. Timasheff to look
upon rules of criminal law as if they were existing self-sufficient realities,
rather than procedural aspects of a legal system, underlies the view of
statutes and legal rules as physical realities which have each a "true"
meaning or existence apart from the interpretations or misinterpretations
of judges, lawyers, and clients. Surely a sociologist should see that the
words of a legal rule have meaning only in so far as a context of social
action gives meaning. Perhaps such a relational view would help the
author to deal more effectively with the problem of law and custom.
Instead of searching for relationships along a mythical or hypothetical
axis of historicity ("How long must custom be custom before it becomes
law?") it would be illuminating if the author were to inquire, "How
far can we get in stating any rules of law without invoking or assuming
customs to define our legal elements, — e.g., reasonable man, ordinary

INTRODUCTION TO SOCIOLOGY OF LAW

care, prudent investment, common use of language, reasonable construc-
tion of a statute?"

In dealing with the origin and development of law, our author again
exhibits a strange passion for the unknown past as a source of explana-
tion (pp. 282 et seq.). Dr. Timasheff is frank enough to recognize that
explanation in these terms is of little scientific weight, but it apparently
never occurs to him that the origin of courts and of law is something
that can be contemporaneously and scientifically studied in the establish-
ment and functioning of the National Labor Relations Board, or the
Board of Tax Appeals, or in the transformation of social forces from
sub-legal to legal forms that marks the enactment of any statute estab-
lishing new agencies of government. Certainly we know a good deal
more about how lobbies operate today to create a court or administrative
body or rule of law where none existed than we know about the politics
of the court of Hammurabi.

Perhaps all these defects have a common root in an Aristotelian
absolutism which assumes that there is only one correct definition for
a given term, only one true meaning in a given law, and only one
absolute historical origin for a given institution. The same rigidity
characterizes the author's insistence that there is only one principle by
which social forces can be harmonized, i.e., the principle of absolute
hierarchy (p. 196 et passim). The attempt to prove this thesis by arguing
that all states with multiple sources of authority ultimately break down
(p. 198) is logically fallacious since no state embodying the hierarchical
principle has yet endured forever or is likely to do so. And certainly,
the very unhierarchical structure of constitutionally limited federalism
that obtains in Switzerland and in this country— under which sovereignty
is relative to the matter under discussion and may rest with any one of
various agencies or, in certain reserved matters, may not exist at all-
seems as durable today as any of the world's autocracies.

Despite the defects inherent in his approach, Dr. Timasheff does
present a number of positive contributions to our knowledge of legal
sociology. Particularly interesting are his use of the concept of probability
in answering the more extreme "realists" who deny the existence of
stable legal rules (pp. 315 et seq.), his conception of international law
as "formed by similar legal rules of different States, insofar as they refer
to interstate relations" (p. 261), and his suggestions with respect to
experimental methods in legal sociology (pp. 39-41),

The volume exhibits an encyclopedic familiarity with the European
literature in the field of legal sociology. Unfortunately, the author's

LOGIC, LAW, AND ETHICS

acquaintance with the work done in the United States during the present
century is considerably less than encyclopedic. The pioneer work in legal
sociology which is associated with the name of Brandeis is entirely
ignored, as is the current of research in the social background of law-
breaking which begins with the work of Pound, Frankfurter and their
associates in the Survey of Criminal Justice in Cleveland. Brooks Adams,
Gustavus Myers, T. R. Powell, Cook, Oliphant, Clark, Edgerton and
Boudin are likewise ignored, and Llewellyn's constructive work on
sociological aspects of law (e.g., the law of sales) is unmentioned, al-
though reference is made to some of his polemical writing. This weak-
ness is perhaps explained by the fact that the first draft of the present
volume was prepared in Petrograd in 1916-1920. One may hope that
further acquaintance with current American developments in legal
sociology will make it possible for Dr. Timasheff to offer either more
vigorous criticism of our sins or more fulsome praise of our virtues.

LAW AS LOGIC AND EXPERIENCE

Although this volume does not purport to be a serious contribution
to legal science or to legal philosophy, it is full of the mellow wisdom,
the gracious erudition, the provoking phrase, and the human sympathy
that make almost anything that Max Radin says or writes worth pon-
dering. It presents a series of lectures on two texts: the dictum of Coke,
J., "Reason is the life of the law," x and the dissenting opinion of
Holmes, J., "The life of the law has not been logic: it has been ex-
perience." 2

If experience is the sum to which we chalk up all unprofitable and
unpleasant things that happen to us because of our miscalculations,
there is some sense in opposing experience to logic or reason. In terms
of that opposition, one might say, paraphrasing Hobbes, that experience
without logic is "nasty, brutish and short/' But the experience of which
Mr. Radin speaks in these lectures is something broad enough to include
logic as well as religion, art, and friendship — is, in fact, no more lim-
ited than life itself. Thus, the assertion that the life of the law is
experience turns out to be a logical tautology: the life of the law is life.
And surely no logician could deny that.

1. Institutes; /, p. 138.

2. The Common Law (1881), p. i.

Published as a review of Max Radin's Law as Logic and Experience in Harvard
Law Review, 1941.

196

LAW AS LOGIC AND EXPERIENCE

Mr. Radin is too good a logician to accept the popular antithesis be-
tween logic and experience as contraries (white and black) or as contra-
dictories (white and not white). Rather, logic and experience are viewed
as divergent directions in analysis. The shape of anything that lies within
the field of law may be described, therefore, in terms of distances from
"our ordinate of logic and our abscissa of experience." Upon this frame-
work, Mr. Radin proceeds to analyze the various compounds of logic
and experience that constitute law, evidence, arbitration, punishment,
and justice.

Applying these coordinates to the nature of law, Mr. Radin demon-
strates that the identification of law with "obligation" is entirely er-
roneous, that indeed freedom from any given obligation is as important
a legal fact as any other fact. And since duty and freedom or privilege
are contradictories, as Radin points out by way of correcting Hohfeld
who called them opposites, there is no room for any conduct outside of
these legal categories. The law then covers the entire field of human
conduct. As Mr. Radin is careful to point out, it covers nothing else—
despite treatises on "the law of oil and gas" and "the law of automobiles."

In dealing with the problem of evidence, the second of these lectures
gives full credit to the role of logic and scientific method. The purpose
of a trial, we are told, is essentially the purpose of scholastic logical
method — "to attempt to solve apparent contradictions, to harmonize
discords, to distinguish between apparent similarities" (p. 45). The law
must rely on science in its effort to attain the truth, although in the com-
merce between law and science, science, no less than law, may draw a
profit. The limitations upon the use of logic and scientific method in
the law, Mr. Radin shows, are derived primarily from limitations of
available energy, time, and procedural machinery.

The lecture on arbitration and judicial decision, although persuasive
in its presentation of the growing importance of arbitration, leaves un-
answered the basic question: Why is arbitration more effective than legal
procedure in certain type-situations? I suspect that the answer is to
be found in an analysis of the class relationships among disputants.
The wolf and the lamb have nothing to arbitrate because neither is in-
terested in the continued existence of the other. Differences within the
flock and the pack are readily settled, however, because the parties have
to live together once the conflict is settled. The appraisal of arbitration
in terms of class relationships is a promising task of legal scholarship
to which the observations of this volume may give some stimulus.

Mr. Radin is not particularly successful, I think, in applying his
ordinate and abscissa to criminal law. What he attempts to develop is

LOGIC, LAW, AND ETHICS

the suggestive antithesis that in civil matters we ought to interest our-
selves primarily in the future consequences of a decision, rather than
in reconstruction of past action, but that in criminal cases the law ought
to stick rigidly to reconstruction and classification of past action and
ignore the future, including the probable effect of the decision upon the
accused and upon society. Most of us will share the author's lack of
sympathy for the practice adopted by dictatorships, old and new, of
punishing people for offenses they are likely to commit in the future.
But if this is true in criminal matters, is it not equally true in civil mat-
ters? What difference to a labor union, seeking to prevent strikebreakers
from taking its members' jobs, whether the union is fined ten thousand
dollars in a criminal proceeding or mulcted in damages to the same
amount in civil proceedings? It seems to me that Mr. Radin's distinction
between the purpose of civil law and the purpose of criminal law errs
in failing to recognize that the distinction between the civil and the
criminal is one not of substance, but of procedure. Is there any rule of
civil law which cannot be enforced by criminal proceedings, or any rule
of criminal law that does not presuppose civil rights? Can there be
robbery if there is no law of property? Conversely, what would rules and
decisions concerning property mean if criminal penalties could not be
invoked, at some stage, in their enforcement? If there is merit, and I
think there is, in Mr. Radin's comments on the importance of special
safeguards in criminal law to prevent the punishment of the innocent,
it is because what we call punishment is the product of a peculiar
procedure, in which the injured party is also the judge. The identifica-
tion of the state as, at one and the same time, injured party, lawmaker,
judge, and executioner is the peculiar characteristic of criminal law
which makes the problem of safeguards so difficult and so important. The
author's observations, like many other discussions of the function of
criminal law, would gain in clarity if placed in this procedural context.
The final lecture, dealing with the nature of justice, is, I think, the
least persuasive. "To secure a good society . . . cannot be the purpose of
law/' we are told, "for the simple reason that it is the purpose of the
entire mechanism of political and social organs" (p. 145). Unfortunately,
we are not told why law may not pursue a purpose to which other social
institutions are also dedicated. Somewhat dogmatically, by playing on
the ambiguity of "the purpose of law/' which sometimes means the actual
purposes of lawyers or judges and sometimes the social values achievable
through law, the author places narrow limitations upon the "proper
province" of law: "Not justice or a good society, therefore, but con-
venience of commercial practice, appeasement of individual quarrels,

198

LAW AS LOGIC AND EXPERIENCE

or an increase of good will among competitors, if that is possible, is
the purpose of law if we examine its actual operation."

This narrowness of ethical standards may be sensible if one thinks
of law exclusively in terms of contracts and collisions. It is perfectly
natural for law professors to think of law in these terms, for by elimi-
nating from view what the author calls "the piffling particularity of an
ephemeral statute" the wisdom of the law professor becomes eternal, and
even acquires an interstate character, so that many generations of stu-
dents from many parts of the country can sit at his feet with pleasure
and profit. It is only fair, however, to note that the term "law" can
mean something more than a mode of judicial dealing with contracts,
collisions, and homicides, and that it has meant much more than this to
the utilitarian and sociological jurists whom Mr. Radin criticizes for
the breadth of the ethical standards they apply to law. If law includes
such things as neutrality and labor legislation, freedom of the press,
immigration laws, and the right to vote, then the narrow standards of
legal criticism which Mr. Radin proposes are largely irrelevant and
certainly inadequate. Indeed, this inadequacy is clearly demonstrated
by the analysis of the scope of law given in the first of these five lectures.

Historically, the attempt to restrict the purposes served by law to
narrow, traditional objectives has been characteristic of conservative
opposition to legal reform. It was in protest against the conservative
view of law as a crystallization of the wisdom of the past that jurists
like Bentham, Von Jhering, and Roscoe Pound (thirty years ago) ad-
vanced the liberating conception of law as a means to the attainment
of a better society, as a form of social engineering in the service of basic
social values. Today, however, when the champions of humanitarian
ideals are everywhere on the defensive, the distinction between the lib-
eral and the conservative, in legal outlook, grows more tenuous. Both,
as allies defending values of civilization threatened by brute force, are
more concerned with the protection of democracy and constitutional
liberties than with the enactment of new social legislation. Both, there-
fore, are inclined today to view the law as a heritage rather than as a
tool.

Max Radin's trumpet call for a retreat from the intellectual outposts
of legal reform is perhaps symptomatic of this defensive mood, which
has descended upon the law as upon other fields o£ thought. One may
appreciate the value of Radin's new outlook in days when liberals are
on the defensive, and at the same time hope that the conditions which
make this exposition worth reading will soon pass away.

199

LOGIC, LAW, AND ETHICS
AN ANALYSIS OF KNOWLEDGE AND VALUATION

Most of our judges and law professors spend a large part of their lives
justifying or criticizing various human arrangements known as legal
rules or decisions, and yet when the circuit of their tasks is interrupted
by an inquiry into just what it is that they are doing when they justify
or criticize, they are apt to react with more heat than light. For the
intellectual fashion of our times requires them to hold that justification
and criticism are matters of personal emotion and uncertainty, while the
dictates of their profession require them also to maintain that what they
are doing has a firm basis in certain and objective truth.

Faced with the modern version of Samson's riddle — how to draw the
honey of objective certainty from the lions of passion and emotion —
our jurists have offered three divergent answers, none of which can
command much respect. Some have denied that there can be any cer-
tainty or objectivity in law, but the most energetic of these, upon don-
ning judicial robes, has had to profess an appeal to something more than
the uncertainties of his own subjective emotions when he has reversed the
decision of a lower court. At the other extreme, there are a few judges
and law teachers who, under the influence of Thomism, Marxism, or
some other absolutistic metaphysics, insist that the certainties of law are
properly derivable from the certainties of morality. But the great ma-
jority of those who write professorial texts or judicial opinions try to
save the certainty of law and the uncertainty of ethics by denying that
law and ethics have any necessary connection with one another.

Out of this effort to separate law from the secret juices that give it
life there has sprung a maze of pseudo-logics, crypto-rationalisms, and
nominalistic positivisms that have in common only a common sterility.
Law is given protection from contamination by human needs through
the age-old method of discreet nomenclature. The facts one dislikes are
called theories; the theories one cherishes are dubbed facts. Law must
retain its integrity by steering clear of social "theory." Many years ago
Holmes wrote of this attitude: "Perhaps one of the reasons why judges
do not like to discuss questions of policy, or to put a decision in terms
upon their views as law-makers, is that the moment you leave the path
of merely logical deduction you lose the illusion of certainty which makes
legal reasoning seem like mathematics. But the certainty is only an
illusion, nevertheless." l

i. "Privilege, Malice, and Intent" (1894) 8 Haru, L. Rev. i, 7,

Published as a review of Clarence I. Lewis' An Analysis of Knowledge and Valuation
in Harvard Law Review, 1948,

200

ANALYSIS OF KNOWLEDGE

Professor Lewis' latest book addresses itself to the basic question of
how the objective certainty that we demand of justice can be derived
from the emotional vagaries of subjective valuations. The answer given
to this question marches for 362 pages through preliminary considera-
tions of logic and epistemology before it comes to grips with the problem
of values; the last 190 pages are devoted to a closely reasoned analysis
of this problem. The volume embodies a large part of the life work of a
distinguished teacher and a patient thinker and is so written that a
patient reader would have to devote proportional time and effort to an
adequate understanding and fair appraisal of the work. Yet if Holmes,
who thought that Kant should have been able to explain his main ideas
to a young lady in ten minutes after dinner,2 had made a similar demand
upon Lewis, it seems to me that he might have responded in something
like these words:

Subjectivism in ethics, the notion that normative statements are of
merely emotive significance, is a pathological development arising out
of misunderstanding of modern science. This sickness of contemporary
thought can be cured by recognition that there is a subjective element
in value judgments, but in exactly the same way there is a subjective
element in judgments of heat, cold, light, color, weight, pressure, and
everything else that is the object of human experience. No scientific
statement would have any meaning if it could not be tested by such
subjective personal experiences as our experiences of color, pressure, etc.
Indeed, the meaning of any scientific statement consists essentially of
the summarization or prediction of such experiences, past, present, and
future, actual, probable, and possible. What saves science from being a
planless succession of daydreams is that there are connections among
our own and other people's subjective experiences which are not always
too abstruse for human understanding. Consequently, men, or at least
some men, are able to think about, anticipate, and make conscious use of
a world beyond the egocentric here-and-now. Such understanding and
manipulation go beyond merely subjective impressions, in ethics as in
other fields of knowledge. Thus, "evaluations of things are objective and
cognitive, and are not relative to particular persons or circumstances or
occasions in any fashion which differentiates them from attributions of
other properties to objects" (p. 458).

All this, Lewis would say, is very far from the transcendentalist posi-
tion that ethical truth is independent of subjective experience. But
ethical truth may be dependent upon subjective factors without being
identical with them. For whenever we go beyond the immediacy of felt
experience to think or say anything about it we run the risk of error.

2. "Holmes-Cohen Correspondence/' ed. by F. S. Cohen, 9 /. Hist. Ideas 3, 22 (1948).

LOGIC, LAW, AND ETHICS

And this is as true of values as of colors or weights. "At least half of
the world's avoidable troubles are created by those who do not know
what they want and pursue what would not satisfy them if they had
it" (pp. 372-73). However, although the subjective element is necessary
in all knowledge, knowledge is more than immediate perception. Knowl-
edge is, for Lewis, a part of life and therefore a part of human action.
Even such knowledge as cannot be refuted by any experience we may
ever have — for example, our knowledge of laws of logical or mathe-
matical inference, or our knowledge that gold is metallic, or that men
are able, under certain conditions, to think — always involves a subjec-
tive element in that such "analytic truth" is a function of our own defi-
pitions, and one may attach to words "any self-consistent signification
that one may choose" (p. 16). If we define gold as a certain metal, then
we know in advance that whenever and wherever gold may be found we
shall find a metal, and no fact could persuade us of the contrary; so,
with the a priori truths of logic. In short, even the most impersonal and
objective statements we can make involve a subjective element.

Subjectivists in ethics go wrong, Lewis thinks, in not taking their
subjectivism seriously enough, in using it, perhaps, only as a weapon
against moral ideas which are in conflict with their own secret moral
beliefs. If they took their subjectivism seriously, and applied it system-
atically to all fields of experience, they would find man's "egocentric
predicament" (to use Perry's phrase) all-pervasive. Being all-pervasive, it
cannot serve as an excuse for separating the uncertainties of ethics from
the pretended certainties of law, economics, or physics. Life is too deeply
tinged with the subjective, the uncertain, and the precarious to leave
any sense in such a separation.

If this is a fair summary of what Lewis is saying, then he has shown
that the principle of polarity can make a solid contribution to our think-
ing about ethical knowledge and knowledge in general. If any substantial
number of our juristic thinkers have the stamina to read through the
Lewis treatise, we may find in the juristic literature of coming decades
a less confident reliance upon the subjectivity of morals and the ob-
jectivity of everything else than we have found in the judicial opinions
and professorial treatises of the past century. And one may hope that
in the field o£ ethics Lewis' volume will stimulate a revival of the effort
to explore the geography of human enjoyments and sufferings. A useful
geography of values might do for the law reform of the coming century
what the work of Bentham did for the century of law reform that he
initiated. But one must admit that Lewis' book is not likely to have
such an effect unless the author's colleagues in ethical fields pay more
respectful attention to his ideas than he has paid to theirs.

202

ANALYSIS OF KNOWLEDGE

Perhaps it is only the vocational prejudice of an old law review editor
that would notice the number of times that Lewis advances ideas de-
veloped by coworkers without giving them credit— Bertrand Russell
and Morris R. Cohen, who have said most of what Lewis has to say
about the nature of value and the scientific method, are not mentioned in
the index. And perhaps it would be captious to criticize Lewis for mis-
understanding the position taken by some of his opponents; for after
all, no two philosophers ever quite understand each other. (This re-
view surely constitutes no exception.) But more serious than any failure
to mention thinkers he follows or to understand those he attacks is
the author's failure to take advantage of the work of contemporaries
who have found ways across barriers that he still regards as insurmount-
able.

The chief purpose of this volume is to establish the possibility of sys-
tematic ethical judgments comparable to the systematic connected judg-
ments of natural science. In this task Lewis finds two special difficulties:
the supposed chasm between the "good" and the "right," and the issue
of the commensurability of values. As to the former, the work done on
the basis of modern logic in establishing the interconnection of "good,"
"bad," "right," "wrong," and all other moral categories is overlooked by
Lewis, who dismisses logical inquiries into this subject as "useless ped-
antry" (pp. 511, 551)— a strange epithet from one of America's top-flight
logicians, a writer of abstruse tomes who likes to denounce "argument
by epithet," and who is surely sophisticated enough to see that "useless
pedantry" is only a dyslogistic equivalent of "priceless teaching/' The
result is that on the last page of his journey Lewis stops at what he
views as an unbridgeable chasm between goodness or value, which he
considers "empirical," and Tightness or justness, which he leaves in a
nonempirical realm of complete mystery (p. 554).

Equally disappointing is Lewis' failure to take account of the work
of fellow logicians who have shown that the traditional objections to
quantitative views of happiness or suffering are based upon an invalid
conception of quantity. One does not need instruments to know that the
suffering of a concentration camp is greater than the suffering involved
in the execution of a dozen Nazi murderers, any more than one needs
instruments to know that there is more nourishment in a pound of roast
beef than there is in two pounds of lettuce, or that spading and culti-
vating half an acre involves more work than picking melons therefrom.
Without such sensible recognition of "more" and "less" in our experi-
ence— which is basic to Lewis* view of knowledge — none of our for-
mulas or instruments for measurement would make sense. Of course,
measurement of more and less involves an element of conviction, but

303

LOGIC, LAW, AND ETHICS

this is as true of calories in dietetics and of ergs or foot-pounds of work
in physics as it is of enjoyment or suffering. And, according to Lewis,
this element of convention is present not only in measurement but in any
application of any concept to any experience (p. no).

For Lewis to give up as hopeless the effort to group and compare
value experiences (pp. 488-95) — something that he tries very hard to
validate (pp. 541-51) — is truly a pity. Men knew enough to com-
pare tasks and food values before the necessary logical formulas for the
process were worked out; otherwise they would not have survived the
hostile forces and predicaments that nature poses. It does not take a
superhuman faith to suppose that men can weigh the enjoyments of the
many against the enjoyments of the few for a few more years or cen-
turies until our scientists have devised the calories or foot-pounds or
ergs to measure human suffering and human happiness in more exact
and refined ways than those of common sense. As a wise French jurist
has said, it is not necessary to throw to the dogs all that is not fit for
the altars of the gods.

Despite these curable lapses in Lewis' effort to establish the possibility
of systematically interconnected ethical observations and judgments, the
argument of the volume moves with an irresistible pachyclermal force.
Myriads of actual or possible objections or misunderstandings are always
being pushed out of the path of the argument. Indeed from a philo-
sophical, as well as a literary, point of view, it may be said that Lewis
overargues his case. Surely it is not necessary to argue that "knowing
is for the sake of doing" (p. 3) — a view which most wise men in the East
and many wise men since Aristotle in the West have found it possible
to reject — in order to establish the fact, which is central to Lewis'
main thesis, that empirical knowledge is always relevant to doing and is
either confirmable or disprovable by experience, and that intellectual
construction — whether of statutes or of rules and concepts of natural
science — involves constructing as well as construing. In this sense, at
least, action is an essential part of understanding, whether the under-
standing be directed to cabbages or to kings.

The demonstration that we do not suddenly move from an objective
world to a subjective world when we move from the appraisal of cab-
bages to the appraisal of kings is one of the outstanding demonstrations
of a philosophy that has digested the meaning of modern logic and opera-
tional method. To that logic and method no living American philoso-
pher has made larger contributions than has Professor Lewis. His Mind
and the World Order is one of the great philosophical books of the cen-
tury. The present treatise is a worthy sequel to that work.

204

LEGAL PHILOSOPHY

LEGAL PHILOSOPHY FROM PLATO TO HEGEL

Huntington Cairns has provided lawyers, judges, and laymen with a
long-needed guide to the thinking of professional philosophers on the
perennial problems of the law. I think it safe to say that no better in-
troduction to the subject has ever been written. Indeed, the book is so
good that one's chief criticism must be that there is not more of it.
Thirteen major philosophers are included — if we accept as valid our
author's characterization of two literary lawyers (Cicero and Bacon) as
major philosophers. A good many important philosophical figures are
omitted. No attempt is made to convey the philosophical thinking of
jurists. The problem of integrating or interrelating the thirteen chosen
philosophical perspectives on law is expressly put aside. What we have,
then, is an excellent collection of essays expounding the thoughts of
thirteen philosophers on legal issues. It would be captious to criticize
these essays because they do not attempt to be something else.

The first character in Mr. Cairns's pageant of philosophers is Plato.
"Western jurisprudence," we are told, "has consisted of a series of foot-
notes to Plato'' (p. 76). This, perhaps, is more a statement about the
making of books than about the development of ideas. Socrates and the
pre-Socratics could also be comprehensively footnoted if we only had
the texts to footnote. But in the chapter on Plato, Socrates appears only
as a defendant in a law suit and as a character in Plato's dialogues.

A brilliant and sympathetic account of Plato's views on law and justice
is marred only at one point by lack of sympathy for Plato's socialized
morality. After pointing out the close parallels between Plato's and
Bentham's views on the role of a legal code, Mr. Cairns regretfully com-
ments that the rational theories of punishment they both profess, based
on the objectives of deterrence and reform, break down because they
justify the punishment of innocent persons in cases where such persons
are believed to be guilty or are generally in need of social overhauling.
But the fact is that any criminal code devised and administered by fallible
creatures is likely to involve the punishment of some innocent people who
are mistaken for criminals. Such occurrences would not, to Plato or to
Bentham, afford a valid reason for rejecting a legal system as unjust. If,
in the long run, the system advances human welfare, then the sacrifice of
some individuals for the general welfare may well be viewed as one of the
inevitable products of human finitude. To view such cases as marking a

Published as a review of Huntington Cairns' Legal Philosophy from Plato to Hegel
in Journal of the History of Ideas, 1949.

LOGIC, LAW, AND ETHICS

breakdown of Plato's and Bentham's social approach is to introduce a
very different concept of individualistic justice, which Mr. Cairns might
well defend but which, instead, he assumes without argument or
question.

Where Plato and Aristotle seem to diverge in their lines of analysis,
Mr. Cairns is definitely on Plato's side. This shows itself in an inclination
to find sensible meanings in Plato's words, even if it becomes necessary to
give a word like "harmony" a figurative meaning, while an Aristotelian
sentence is sometimes given a literal construction and dismissed as obvious
error. Thus, the Aristotelian idea of "measure" in reward and punish-
ment— one of the great humanizing ideas of western civilization — is dis-
missed with the rather cavalier comment: "That it was impossible to
measure the immeasurable apparently did not occur to him" (p. 122).
Has not the whole progress of western science rested on the development
of ways of measuring what was once immeasurable, e.g. temperature,
light, sound, and energy? And is there no hope that the humanitarian
application of Bentham's hedonic calculus, which provided a basis for
most of the legal reforms of the past century, can be pressed further as
we learn more about the nature of reward and punishment, or more
generally, of human enjoyment and suffering?

Mr. Cairns's effort to prove that Cicero was a philosopher with an origi-
nal contribution to legal philosophy (p. 130) is not particularly con-
vincing. The assignment of originality to any author generally tells us
more about the limitations of the assignor than about the achievements
of the assignee. In this case the ascription of Ciceronian and Hellenistic
origins to the basic idea of human equality appears to be based upon
unawareness of the pre-Hellenic development of this thought in the
Judaeo-Christian tradition, and especially in the prophetic works of
Isaiah, Amos, and Malachi.

With Francis Bacon, as with Cicero, Huntington Cairns does his best
to make a philosopher of a lawyer, but the effort is not very convinc-
ing.

The chapters presenting the legal philosophies of St. Thomas, Hobbes,
Spinoza, Locke, and Leibniz are among the most illuminating chapters
of the volume.

The account of Thomistic legal philosophy is especially noteworthy
because, in recognizing that St. Thomas presented "the first systemati-
cally complete philosophy of law" (p. 203), Mr. Cairns does not fall for
the usual stereotypes which are so often applied to scholastic philoso-
phers. Thus, he carefully notes St. Thomas1 recognition of "the relativity
of human behavior" (p- 182) and points out many ways in which the

206

LEGAL PHILOSOPHY

later thinking of Bentham and Von Jhering was anticipated in Thomis-
tic realism.

The problem of civil liberties and the limits of state power over the
lives and thoughts of private citizens has, in recent years, brought forth
much thinking, and even more writing. What Hobbes, Spinoza, and
Locke have to contribute to our reflection of these issues is presented
by Mr. Cairns with great clarity. In Hobbes is revealed (with all the
charm that distance lends) the clarity that runs through the later think-
ing of Austin and Holmes and their followers in modern jurisprudence;
out of this clarity emerges a realistic view of the evils of war and anarchy
which government is instituted to circumvent. In Spinoza is revealed the
complementary and equally realistic (Aristotelian) view of the evils of
government itself, which Hobbes and some of his modern followers
(e.g. Holmes and Frankfurter) have rather tended to overlook. Out of
Spinoza's realistic recognition of the corruptibility of officials, Mr. Cairns
traces the rise of the doctrine of civil liberties and restraints on govern-
ment which, through the mediation of Locke, became so powerful a
force in the development of American constitutional theory.

Leibniz's contributions to our understanding of legal system, legal
science, and legal education, and Hume's contributions to our under-
standing of why men obey and disobey the law, are subjects of two of
the most original chapters in this volume.

The concluding chapters are particularly significant not so much for
what they say about the views of Kant, Fichte, and Hegel, which has
mostly been said before, but for the imaginative way in which Mr.
Cairns has identified the echoes of their thoughts in the thinking of our
courts and legislatures.

Mr. Cairns has done a beautiful job of translating the words of his
chosen philosophers from Greek, Latin, and German into English. This
reviewer is not part of the audience which the author has in mind when
he says, for example, that his obligations to the translations and com-
mentaries of England, Grote, Shorey, Taylor, Nettleship, and Ritter will
be "obvious." But two all-too-popular mistranslations deserve correction.
So far as I know, Aristotle never said that man is a social animal
(p. 377). He did say that man is a political animal,* which has rather
different overtones and implications. And Kant did not say that the
legislator must be "rationally viewed as just and holy" (p. 45), although
these are the words of Hastie's bowdlerized translation.2 What Kant said

1. Pol. I, 2,

2. "Science of Right," Part II (Public Right), sec. 49^ in Kant's Philosophy of Law,
tr. by Hastie (1887).

207

LOGIC, LAW, AND ETHICS

was simply that the legislator is holy ("der Gezetzgeber ist heilig"}, a
statement which goes far to explain why Kantian legal philosophy (in
its unadulterated form) has made so little appeal to realistic-minded
Americans and their British cousins.

That Mr. Cairns should have felt bound to end his volume with
Hegel provides food for thought. "JUIisPrU(tence/' we are told, "which
was at one time the daughter of philosophy, is now not even a stepchild"
(p. 567). Whether the lady in question was murdered or orphaned, Mr.
Cairns does not say. But whatever the explanation, the fact remains that
for almost a century after the publication of Hegel's Grundlinien der
Philosophie des Rechts (1821) very little attention was paid by profes-
sional philosophers to the perennial problems of the law on which all
major philosophers from Socrates to Bentham and Hegel (with the
possible exception of Descartes) had centered a large part of their
thinking.

One of the founders of this Journal undertook to trace, some forty
years ago,3 the intellectual currents which diverted philosophy from its
early and long-sustained concern with law and fixed its gaze on more
celestial subjects, such as epistemology, ontology, axiology, and semantics.
Among those currents, the rock of specialization has exercised a domi-
nant influence. Since the years of Hegel's youth, jurisprudence (like
physical science) has developed into a considerable body of specialized
thinking. The mastery of its literature stands as a forbidding obstacle to
the professional philosopher who would think philosophically about
legal issues. It is much easier for the modern philosopher to make a
specialty of things that nobody else knows much about, such as the
nature of knowledge, value, or the universe, and to say, "We, too, have
a specialty, on which we can speak without challenge from the un-
initiated."

Some day, we may hope, a sequel to this volume may be written, per-
haps by Mr. Cairns himself, to trace contributions to our understanding
of the law that have come from post-Hegelian philosophers who have
refused to exclude law from the field of philosophical vision. That it is
possible to master the literature of jurisprudence without succumbing to
jurisprudential provincialisms and without losing one's philosophic

3. M, R. Cohen, "The Conception of Philosophy in Recent Discussion/* Journal of
Philosophy, VII (1910), 401; "Jurisprudence as a Philosophical Discipline," ibid., X
(1913), 225. The former article has recently been reprinted in M. R. Cohen, Studies in
Philosophy and Science (Henry Holt, 1949), 33-47. The latter has been reprinted in
Reason and Law: Studies in Juristic Philosophy (Free Press, 1950).

208

LEGAL PHILOSOPHY

vision or logical acumen is shown by the work of Huntington Cairns
himself, not less than by the work of Morris R. Cohen and T. V. Smith.

As is the custom among historians of philosophy, Mr. Cairns has por-
trayed a series of thirteen different views and "put aside immediately the
attractive thought that the fundamental truths of the various philoso-
phies of law should be sifted out and then combined into one har-
monious whole" (p. 557). The result is to leave the reader with the
impression that no progress is possible in philosophy, and that all
philosophers are in perpetual and hopeless disagreement with each
other.*

But why assume that [the statements of philosophers] contradict each
other? If Aristotle ever said, "It is raining," and if Hegel ever said,
"It is not raining/' one could establish a contradiction only by reifying
the "It" in each statement and assuming that there is a single and
absolute "It" in the universe. May we not more reasonably assume that
the field of legal activities and legal ideals is sufficiently broad and
diversified so that law may be a "form of social control" and a "rule of
conduct" and a "relation between human beings," all at the same time?
And may we not go further and note that from different historical
perspectives, different aspects of the field will come into focus and
different points of heaven will appear at the zenith? Is Hobbes's explana-
tion of the ways in which civil war and disorder may be avoided really
incompatible with Spinoza's explanation of the conditions under which
civil liberties may be enjoyed? May not progress in philosophy, like
progress in chess or music, consist in the continued elaboration of
hitherto unseen possibilities?

We are, each of us, bound to choose our own definitions and stand-
points, and to see the world through our own eyes. But may we not, at
the same time, make allowance for the fact that the rest of the world,
poor souls, will have to see the world through other eyes and from other
standpoints, in respect of space, time, and valuation? Logical contra-
diction can exist only within a single system of definitions. One philoso-
pher could contradict another philosopher only if he first accepted all
the latter's definitions. I do not think Mr. Cairns has established that
any two of his chosen philosophers have agreed on all their definitions.
It follows that he has not established any logical contradiction among
the views that he characterizes as contradictory.

We are all blind men reporting on an elephant, and if each reporter,

* [Ed. note: A quotation from Mr. Cairns' book supporting this point has been
omitted, since it is given in full above, in "Field Theory and Judicial Logic," p. 121.]

209

LOGIC, LAW, AND ETHICS

instead of contradicting his fellows, would carefully note the point and
direction of his own approach, we might piece together a good over-all
idea of the size and shape of the beast. Perhaps, some day, Huntington
Cairns will work out the formulae of translation that will help us piece
together his thirteen reports on the Elephant called Law.

SJ10

BOOK II
The Indian's Quest for Justice

Anthropology and the Problems
of Indian Administration

THE WORD anthropology is a red flag to the regular Indian Service ad-
ministrator. To him it generally connotes a breed of people that look
upon Indians as museum exhibits to be measured and catalogued rather
than as human beings faced with the universal human problems of earn-
ing a living, keeping healthy, raising a family, getting along with neigh-
bors, and enjoying life.

This feeling of distrust is likely to be reciprocated. A good many an-
thropologists, taking a most unanthropological view of the customs and
thought-ways of Indian Service officials, regard such officials not as part
of an historical process of acculturation but merely as "disturbing factors"
in the search for anthropological truth.

Fortunately there are some signs today that this traditional hostility is
breaking down. Here and there in the Indian Service a student of an-
thropology has shown some Indian Service employee how to solve some
concrete practical problem of social adjustment in terms of ethnological
factors which had escaped the notice of the practical administrator. At
the same time, a number of American anthropologists have finally re-
pudiated the traditional assumption that anthropology can be studied
only in the purity of the past and that things modern are not anthro-
pological. Many have come to suspect that the "breakdown of culture/'
which has seemed to so many anthropologists to mark the end of anthro-
pology, has in fact been going on through all cultural history, and that
the dynamic aspects of culture in the process of change are worthy of
scientific study.1

i. See, for instance, Clark Wissler, "European and American Indian Cultures in
Contact," in E. B. Reuter, Race and Culture Contacts (1934); Alexander Lesser, The
Pawnee Ghost Dance Hand Game: A Study of Cultural Change (1933); Margaret Mead,
The Changing Culture of an Indian Tribe (1932); Robert Redfield, Tepoztlan: A
Mexican Village (1930); W. C. Bennett and R. M. Zingg, The Tarahumara: An Indian
Tribe of Northern Mexico (1935). The writer has found a good deal of light on

Published in The Southwestern Social Science Quarterly, 1937.

213

THE INDIAN'S QUEST FOR JUSTICE

In this field of what might be called dynamic anthropology, there are
a good many practical problems on which an administrator may appeal
for scientific assistance. It is the purpose of this paper to list very briefly
a few of these problems of administration.

EDUCATION

Education on Indian reservations may be either an agent for dissolving
Indian tradition and culture, for making a white man out of the Indian,
or an instrument for preserving native values and ultimately, perhaps,
enriching American life. The choice between these two divergent ob-
jectives will be made not by the anthropologist but by the politician,
that is to say, the determiner of policies. The anthropologist may be use-
ful in the execution of either policy, for it is obvious that one cannot
preserve cultural traits he does not understand, but it is equally true that
efficient destruction demands maps of what is to be destroyed.

The history of organized education in this country has made it seem
natural, to those who control the purse strings of Indian education, that
education should be directed primarily to children rather than to adults.
The practice, however, of educating children along lines unfamiliar to
their parents produces serious social maladjustments, as is amply evi-
denced in the education of second generation Americans in our larger
eastern cities. The child who is taught to respect skills and types of knowl-
edge unfamiliar to his parents inevitably acquires a certain amount of
disrespect for his parents, and, on the other hand, the parents, seeing the
child spending time on unintelligible pursuits are likely to regard the
younger generation as peculiarly ignorant and lacking in ability and dis-
cipline.

These tendencies combine to create a cleavage of generations. On many
reservations the outward manifestation of this cleavage is bitter faction-
alism, A second manifestation of this cleavage is the appearance of a
"lost generation," a generation that has left a world that seems dark with
superstition and barbarism and has not been admitted into the new
world that has been heralded by school teachers and other prophets of
civilization. These maladjustments do not produce "gangsters" on Indian

current administrative issues in a comprehensive study of the Menominee Tribe by
Felix and Marie Keesing [Menomini Indians of Wisconsin, 1939] which combines
careful historical research with a keen understanding of contemporary social problems.
The writer is also very much indebted to Dr. Scudder Mekeel, of the Indian Office,
whose essay on "The Economy of a Modern Teton [Dakota] Community" [1936] is
a model of realistic analysis.

ANTHROPOLOGY AND INDIAN ADMINISTRATION

reservations as they do in our large cities, but they do produce shiftless,
visionless, imitation white men that now, to most Americans, exemplify
Indian character.

The solution to this fundamental problem requires scientific analysis
of the problem of acculturation. Some form of adult education is in-
evitably called for if the continuity of generations, which is essential to
social morality, is to be preserved. But adult education is a more difficult
thing to arrange than elementary education, since it is harder to impose
alien interests upon adults. All the more important is it, then, that we
should base our plans for adult education upon a clear perception of the
native interests and skills which must be the raw material of such educa-
tion. In this task of exploration the anthropologist must play a primary
role.

There are problems more concrete upon which anthropological guid-
ance is needed, such problems, for instance, as are involved in the de-
velopment of education in arts and crafts. We need not only an index of
native craft activities, but a critical appraisal of these activities from an
economic and aesthetic point of view. The methods of basketry making
among different Indian groups will differ widely with respect to the time
consumed in production, the durability of the product, and its beauty.
Unless work in arts and crafts is to be for the purpose of filling museums,
the responsibility of choosing between efficient and inefficient techniques,
between more beautiful and less beautiful products, will inevitably fall
upon those charged with education in the applied arts. What is required,
then, is an understanding not merely of Indian art products, but of the
incentives and techniques of the native artists.

Again, in the teaching of history, the anthropologist is called upon to
make practical contributions of concrete value. Indian children and par-
ents alike have the right to demand that the history of their people taught
in their schools shall bear some resemblance to the facts. It is for the
historical anthropologist to dig these facts out of the mass of records and
old wives' tales in which Indian tribal history is imbedded.

THE PROBLEM OF ADMINISTRATIVE AREAS

An Indian reservation is an administrative unit. It may or may not be
a cultural or social unit. The fortunes of history have scattered the
Chippewa Tribe through many states and brought together on a single
reservation Shoshones and Arapahos, or Grosventres and Assiniboines.
The differences between natural and administrative groupings are a key
to many problems of Indian social organization and disorganization. The

THE INDIAN'S QUEST FOR JUSTICE

ever-present problem of factionalism within a reservation frequently runs
back to band or clan divisions.

Dr. Scudder Mekeel reports the case of an Indian corral built for the
use of a certain "district" on a reservation. The district, laid out as a
unit for administrative purposes, i.e., for the convenience of an Indian
Service fanner with a car or perhaps a horse and buggy, had no special
relation to Indian social groupings. There was consequently no feeling of
collective responsibility among the Indians supposed to cooperate in the
use of this corral. The result was that various Indian families felt no
compunction about using the corral fence as a source of firewood.

Here, in a minute case, is an example of the difficulties which ignorance
of the natural Indian groupings has brought upon the shoulders of In-
dian administrators. Nothing is more natural than that a forestry or
grazing expert of the Indian Service should lay out a unit of operation
with his eyes on the ground, investigating soil, water, contours, and veg-
etation. He cannot give attention to the human factor in the problem
of administrative areas unless he understands the nature of that factor.
And the Indian Service is sadly in need of scientific information on the
historical and ethnological elements that enter into the formation and
functioning of social groups on the various reservations.

ECONOMIC ACTIVITIES

In seeking to help the Indian to become self-supporting, Indian ad-
ministrators have commonly taken one of two views. From the begin-
ning the view has been current that the natural occupation of the Indian
is that of farming. To a certain extent this view has been tempered by
the belief that Indians should be assimilated into the white population
through technical training in diversified occupations such as plumbing,
hair dressing, and printing.

There are difficulties in each of these theories of Indian economic de-
velopment upon which the data of anthropology may throw significant
light. Training for urban occupations is useful only if the person trained
can make the social adjustments necessary for urban life. The situation
of the Indian entering urban life is to a certain extent similar to that
of the European immigrant, except for the increased isolation of the
Indian in an urban society which cannot contain many others of his race.
He meets with misunderstanding, race prejudice, and patronizing senti-
mental interest. He must live entirely in a money economy. Familiar
social sanctions of publicity, praise, and ridicule do not exist. Social
jnores different from those he has known on the reservation or in school

216

ANTHROPOLOGY AND INDIAN ADMINISTRATION

are enforced by sanctions that he may not recognize or understand. These
difficulties, coupled with the more obvious difficulties which any country
"hick" encounters among city "slickers/* make the program of industrial-
izing and urbanizing individual Indians fairly hopeless.

On the other hand, the program of assimilating the Indian to the pat-
tern of life set by his white pioneer farmer neighbor has encountered
difficulties equally serious though less easily understood. The typical
white employee of the Indian Service has assumed that the life of the
white pioneer farmer in the Indian country is a good life, and perhaps
the good life, that industriousness is one of the highest virtues, and that
the receipt of "charity" from the government is disgraceful. But these
assumptions do not correspond with the traditional beliefs of most In-
dians. In many parts of the country agricultural work has long been
looked down upon as monotonous, degrading, and fit only for women.
On the other hand, the receipt of goods from a generous friend or from
a foe conquered in war was an extremely honorable method of securing
material possessions. The Sioux veteran who brings home five pounds
of bacon from the agency of the nation which he and his people once
defeated in warfare may be engaged in an honorable occupation, accord-
ing to the traditional Sioux standard of values. Even among whites the
receipt of unearned income is considered honorable if it is the result of
victory in military or economic warfare. The Indian Service extension
worker who considers it perfectly obvious that the Indian who plants
many acres of potatoes is a more honorable citizen than the Indian who
draws rations simply fails to understand the background of values and
incentives out of which economic activity emerges.

In every culture there are gradations of occupation from the honorable
to the dishonorable. These gradations cannot be safely ignored in the
choice of suitable economic activities for a given community. Anthro-
pologists can render a significant service by uncovering the standards and
incentives which will produce efficient and satisfying work. We have
learned, as a result of muddling experience, that certain Indians take
to cattle-raising with tremendous enthusiasm. We know that many In-
dians have been entirely unsuccessful as mill-workers, dairymen, or wheat
farmers. We know in general that those Indians who have preserved their
traditional occupations, e.g., irrigation farming among the Pueblos^ or
fishing among certain northwest tribes, are industrious workers and enjoy

their work.

What Indian Service workers have generally failed to recognize is that
in the long run people do not make a success of any job unless they en-
joy it. Whether people enjoy or despise the work they are doing depends

217

THE INDIAN'S QUEST FOR JUSTICE

in very large measure upon childhood stories that made some kind of
man's work (or woman's work) seem very important and exciting, upon
ceremonial developments in the work they do that compensate for danger
or relieve monotony, and upon a whole life adjustment to certain rhythms
of activity. The hunter who has learned from his grandmother or grand-
father of the glories of ancient hunters, who has looked upon success in
the chase as the first mark of his manhood, who has accustomed his body
to intermittent periods of sustained strenuous activity and his mind to
the face of danger, may not be satisfied to dig potatoes or cultivate corn.
There are other occupations of modern life, such as herding cattle or
operating a tractor or a steam shovel, which may appeal to the same deep-
rooted drives that once produced great hunters. On the other hand, the
Indian irrigation farmer of the Southwest who has made a ritual and a
religion of his dependence upon sun and rain and corn, who celebrates
the harvest with communal rejoicing and symbolizes his pride of achieve-
ment in the long ears of corn strung up to dry in front of his home, needs
no Indian Service farmer to encourage his industry.

The belief among certain Indian Service employees that Indians are
naturally lazy is a token of Indian Service failure, indicating only that
the bearers of modern civilization have not offered certain Indian groups
a "moral equivalent" of the work that was traditionally honored and
respected. The task of discovering or creating substitute activities which
engross the same human drives and build upon the same popular ideals
as the traditional work activities of a given Indian group is probably the
most important task of applied anthropology.

LAND TENURE

The extent of our ignorance of the basic facts of Indian land tenure is
amazing. One might read in an hour all that anthropologists have had to
say on this subject. Administrators and research workers alike have usu-
ally dismissed the subject with the observation that private property in
land did not exist. This is a misleading half-truth. It is probably true
that, among most tribes, the individual Indian could not sell land to a
white man, but this is hardly a negation of private property. Under any
system of land tenure there are restraints on alienation, and in the great
citadel of individual land tenures from which our common law is de-
rived there have been times when most of the land in the country could
not be sold to anyone. We do know that in many Indian tribes lands
have been individually utilized for purposes of gardening, fishing, or
trapping. Where such individual use is socially recognized there is in-

218

ANTHROPOLOGY AND INDIAN ADMINISTRATION

evitably an unwritten code defining the limits and conditions of this
interest in the land, and the methods of transferring it to others either
inter vivos or at death. In some cases, as in the Rio Grande Pueblos, there
may be well-defined forms of governmental procedure in the assignment
of lands for cultivation and the revocation of assignments for non-use.
Among other Indian groups, methods of appropriating tribal land to
individual use may depend upon the strength or prestige of the indi-
vidual claimant. But it is safe to say that in every Indian tribe some
individual interest and some social obligations are attached to the land.
Without knowledge of such individual rights and social responsibilities
the Indian Service has never been able to deal satisfactorily with Indian
land holding on unallotted reservations. Unless this lack of knowledge
can be remedied, the drive towards imposition of white concepts of
private property, in the form of the allotment system, is likely to be
resumed. The administrator who seeks to control overgrazing on the
Navajo Reservation, or to collect "operation and maintenance charges"
for irrigation water on Pueblo lands, must be able to define the interests
of private individuals in "communally owned lands." Unless this process
of definition is based upon more anthropological information than is
now at the disposal of any Indian Service administrator it is likely to
end in confusion and failure.

INHERITANCE

The problem of Indian inheritance has long baffled the Indian Service
administrator. An Indian Service reservation administrator of outstand-
ing ability once confessed that he had succeeded in wiping out all the
pagan customs of his wards except their customs of inheritance. It was
still possible for the decedent's brother to take all his cattle, leaving the
widow and children in abject poverty. Possibly if this superintendent had
understood the inheritance laws of the tribe under his jurisdiction he
would have seen as much justice in them as in the inheritance laws of the
various states. But it is also possible that the situation which caused him
concern was in part the result of white laws — that in years past the
brother would have taken not only the cattle but the widow and children
as wen — and that the present situation is an unstable resultant of two
divergent codes.

In imposing state inheritance laws upon certain Indian reservations
we inevitably read into Indian social life the concepts upon which white
inheritance is based, i.e. marriage, divorce, adoption, degrees of relation,
the ownership of property within a family, and the concept of decedent's

219

THE INDIAN'S QUEST FOR JUSTICE

debts. To what extent these concepts represent anything actual in native
Indian social organization we do not know.

HEALTH CONDITIONS

Indian health conditions are notoriously bad. Foremost among the gifts
which the white men have brought to native America is the Pandora's
box of diseases previously unknown on this continent. The problem is
essentially a white problem to be solved with white medicine. Yet even
in this field there are native resources and native obstacles which make
the problem of health maintenance on Indian reservations different from
the problem that exists in a white locality of equal poverty.

For one thing the habit, widespread among the Plains Indians, of
family visits to friends and relatives for sustained periods, coupled with
conditions of crowding in Indian homes, lays a special basis for the spread
of contagious diseases. This renders almost futile individual treatment
of contagious diseases which sends the cured individual back to the source
of contagion. Preventive hygiene demands not only a knowledge of the
social customs that endanger health but also an appreciation of the
human satisfactions derived from these customs. In the last analysis, these
customs will be modified not by prohibitory commandments of a sanitary
code but only by social adjustments which bring to the Indians concerned
the human values they have hitherto found in the customs that have be-
come dangerous to health. Father William Duncan, for example, made
it possible for his Indian community to be both hospitable and healthy
by encouraging them to build community guest-houses for visiting In-
dians.2

Indian Service efforts in preventative hygiene have made insufficient
use of native patterns and ideals of physical development. In our efforts
at civilization we have substituted rations of beans, coffee, sugar, lard,
and flour for native Indian diets. We have instructed the Indian to guard
his body from the sunlight, we have deprived many Indian groups of
adequate water supplies, we have discredited the native medicine men
(who in many parts of the country had achieved remarkable skill and
a knowledge of native medicinal herbs that white physicians have not yet
improved upon), and we have instigated radical changes in forms of
shelter. An analysis of these civilizing drives from the standpoint of public
health would be of great value.
2. H. S. Wellcome, Story of Mettakatla (1887), p. $3.

2 2O

ANTHROPOLOGY AND INDIAN ADMINISTRATION

ART AND RECREATION

To many visitors in the Indian country the outstanding impression of In-
dian life, outside of the Southwest, is that of spiritual squalor. Through-
out the Plains country and in many other parts of the nation, white
civilization has wiped out a culture remarkably rich with everyday
beauty, in the applied arts, in games, in dress, in dances and music. There
has been substituted a desolate ideal of the white homesteader, a man
who has lost contact with society #nd has no time anyway for friend-
ships, art, or play. This change of values has naturally demoralized the
Indian. The white homesteader was generally buoyed up to endure a
recreationless life by drives which the Indian has not inherited, chiefly
the powerful drive of individual financial success to be achieved through
the exploitation of natural resources. Some day anthropologists may
chart in detail the ravages which have followed white attack upon Indian
recreation. Meanwhile there is the more immediately pressing task of
resurrecting forms of Indian art and recreation which can serve in mod-
ern life the same functions that they served decades ago, or of discover-
ing or inventing their modern equivalents,3 in terms of a scientific theory
of cultural valences.

3. At Metlakatla, Mr. Paul Gordon, of the Division of Territories, informs me,
an effective substitute for gambling games was found in the setting up of a magni-
ficent brass band. Cf. J. W. Arctander, The Apostle of Alaska (1909), pp. 225, 337.

221

How Long Will Indian Constitutions Last?

BETWEEN October 28, 1935, and January 15, 1939, ninety-seven Indian
tribes framed constitutions for self-government, which were approved
under the Act of June 18, 1934.

How long are these Indian constitutions likely to last?

Any answer to this question that is more than mere guesswork must
square with the recorded history of Indian constitutions. Tribal constitu-
tions, after all, are not an innovation of the New Deal. The history
of Indian constitutions goes back at least to the Gayaneshagowa (Great
Binding Law) of the Iroquois Confederacy, which probably dates from
the isth century. We have the wampum records and transcripts of the
traditional recitations expounding the provisions of this constitution —
the rule of unanimity, the federal structure of government, the provisions
for initiative, referendum, and recall, the prohibition against putting
chestnut wood in the council fire, the male suffrage amendment, and
the warning to political office-holders that they must develop skin "seven
spans thick" so that they may be tolerant of criticism and immune from
anger. (The Constitution of the Five Nations, New York State Museum
Bulletin, No. 184.)

So too, we have the written constitutions of the Creek, Cherokee,
Choctaw, Chickasaw, and Osage nations, printed usually on tribal print-
ing presses, constitutions which were in force during the decades from
1830 to 1900.

These constitutions are merely historical records today. Other Indian
constitutions, however, retain their vitality. A good many tribes have
had rudimentary written constitutions, while still other tribes are gov-
erned by elaborate constitutions which have never been recorded. The
difference between a written and an unwritten constitution should not
be exaggerated. The rules concerning council procedure, selection of
officers, and official responsibilities, which have been followed by the
Creek towns, or by the Rio Grande Pueblos, without substantial altera-
tion across four centuries, certainly deserve to be called constitutions.

Published in Indians at Work (US. Department of the Interior), 1939,

222

INDIAN CONSTITUTIONS

They do not lose their potency when they are reduced to writing. When
the constitution of Laguna Pueblo was reduced to writing in 1908, the
structure of the Pueblo and its way of life were not altered by that event.

In all recorded history of Indian constitutions, two basic facts stand out.

It is a fact of primary significance that no Indian constitution has
ever been destroyed except with the consent of the governed. Congress
has never legislated a tribal government out of existence except by treaty,
agreement or plebiscite. Even the wholesale destruction of the govern-
ments of the Five Civilized Tribes in the old Indian Territory was ac-
complished only when the members of these tribes, by majority vote,
had accepted the wishes of Congress. These governments ceased to exist
as governments primarily because they had admitted to citizenship, and
to rights of occupancy in tribal lands, so many white men that the
original Indian communities could no longer maintain a national exist-
ence apart from white settlers. The acts of Congress and the plebiscite
votes of the tribes, which were dominated by the "squaw-men" and
mixed-bloods, reflected an accomplished fact. The Constitution of the
Iroquois Confederacy likewise was broken only by the Indians them-
selves. The unity which was the Iroquois Constitution was broken when
the Six Nations could not agree on the question of whether to support
the American revolutionaries or the British.

The second basic fact that stands out in a survey of the life span of
Indian constitutions is that the Indians themselves cease to want a con-
stitution when their constituted government no longer satisfies important
wants. When this happens, a tribal government, like any other govern-
ment, either dissolves in chaos or yields place to some other governing
agency that commands greater power or promises to satisfy in great
measure the significant wants of the governed.

If we are to be realistic in seeking to answer the question, "How long
will the new Indian Constitutions last?" we must focus attention on the
human wants that tribal governments under these constitutions are able
to satisfy rather than on guesses as to what future Congresses and future
administrations may think of Indian self-government. For one thing,
it is highly improbable that Congress will depart so far from the tradi-
tion of American democracy and local self-government, and from its own
practice across 150 years, as to legislate a tribe out of existence unless
a majority of the Indians themselves want the tribe dissolved. In the
second place, even if Congress should enact such legislation, it probably
could not be enforced if the Indians objected to it. It is extremely likely
that organized Indian tribes will continue to exist as long as American
democracy exists and as long as the American people are unwilling to

223

THE INDIAN'S QUEST FOR JUSTICE

use the army to carry out Indian policies — provided that the Indians
themselves feel that tribal governments satisfy important human wants.
What are the wants that a tribal government can help to satisfy?

The most fundamental of the goods which a tribe may bring to its
members is economic security. Few things bind men so closely as a com-
mon interest in the means of their livelihood. No tribe will dissolve so
long as there are lands or resources that belong to the tribe or economic
enterprises in which all members of the tribe may participate. The young
man who in the plastic years of adolescence goes to his tribal government
to obtain employment in a tribal lumber mill, cooperative store, hotel,
mine, farm, or factory, or who applies to a committee of his tribal coun-
cil for a chance to build up his herds, or to build a home and garden
upon tribal lands assigned to his occupancy, cannot ignore this tribal
government.

Government is an affair of human loyalties. These loyalties Indian
tribes cannot command if, in the important economic decisions of their
lives, the members of the tribe must look elsewhere for opportunity and
guidance. The preservation of tribally owned lands, where such owner-
ship exists, and the fostering of Indian land-use under tribal guidance,
are essential if the younger generation is to continue to look to the tribe
for aid in life's economic struggles.

It follows that governmental credit policies in making loans to Indian
tribes are of critical importance. If, in such loans, special attention is
given to encouraging tribal enterprises that spring from tribal interest
and initiative, a real basis of social solidarity is provided. On the other
hand, if credit operations are entirely confined to individual enterprises,
or to agency enterprises that are "tribal" in name only, no such common
interest is created. The struggle among individual Indians for a lion's
share of tribal loan funds may prove, on the contrary, a disintegrating
and faction-producing drive.

Second in importance only to the tribal credit program is the tribal
land acquisition program. A landless tribe can evoke no more respect,
among farmers, than a landless individual. But more than paper owner-
ship of tribal land is here in question. The issue is whether the tribe
that "owns" land will be allowed to exercise the powers of a landowner,
to receive rentals and fees, to regulate land-use and to withdraw land-
use privileges from those who flout the tribal regulations; or whether
the Federal Government will administer "tribal" lands for the benefit

224

INDIAN CONSTITUTIONS

of the Indians as it administers National Monuments, for instance, for
the benefit of posterity, with the Indians having perhaps as much actual
voice in the former case as posterity has in the latter.

The roots of any tribal constitution are likely to be as deep as the
tribe's actual control over economic resources.

Less tangible than the possession of common property, but perhaps
equally important in the continuity of a social group, is the existence
of common enjoyments. In community life, as in marriage, community
of interest in the useful and enjoyable things of life makes for stability
and loyalty.

Any governmental organization must do a good many unpleasant jobs.
Arresting law-breakers and collecting taxes are not activities that inspire
gratitude and loyalty. Thus government comes to be looked upon as a
necessary evil, at best, unless it actively sponsors some of life's everyday
enjoyments. An Indian tribe that enriches the recreational life of its
members through the development of community recreational facilities
is building for itself a solid foundation in human loyalty.

There is no doubt that the remarkable tenacity of traditional govern-
ment in the Pueblos of New Mexico derives in large part from the role
which that government plays in the popular dances, communal hunts,
and similar social activities. To relieve the barrenness of life on some
of the northern reservations is a task hardly less important than tie
reestablishment of the economic basis of existence. The establishment
and management of community houses, which may be centers of com-
munity sings, community dances, community plays, fairs, and festivals,
movies, athletics, and club activities might be the decisive factor in de-
termining the permanency of a tribal constitution. The building of a
community basketball court and swimming pool by the tribal govern-
ment may do more to win loyalty from the youth of the tribe, and thus
to insure the permanence of tribal organization, than many activities
of government that political theorists may consider more essential.

In this field, much will depend upon the attitude of Indian Service
officials, and particularly upon the attitude of teachers, social workers,
and extension agents. It will be hard for them to surrender the large
measure of control that they now exercise over the recreational and social
life of the reservations, but unless they are willing to yield control in
this field to the tribal government, that government may find itself
barred from the hearts of its people.

225

THE INDIAN'S QUEST FOR JUSTICE

III

Outside of Indian reservations, local government finds its chief justi-
fication in the performance of municipal services, and particularly the
maintenance of law and order, the management of public education,
the distribution of water, gas, and electricity, the maintenance of health
and sanitation, the relief of the needy, and activities designed to afford
citizens protection against fire and other natural calamities. On most
Indian reservations all of these functions, if performed at all, are per-
formed not by the tribal councils but by employees of the Indian Service.
Thus the usual reason for the maintenance of local government is lacking.

The cure for this situation is, obviously, the progressive transfer of
municipal functions to the organized tribe. Already some progress has
been made in this direction in the field of law and order. Codes of mu-
nicipal ordinances have been adopted by several organized tribes; judges
are removable, in some cases, by the Indians to whom they are responsi-
ble; and the former absolute powers of the Superintendent in this field
have been substantially abolished. In the other fields of municipal ac-
tivity no such change has yet taken place.

Where Indian schools are maintained, the Indians generally have
nothing to say about school curricula, the appointment or qualifications
of teachers, or even the programs to be followed in the commencement
exercises. Many reasons will naturally occur to the Indian Service em-
ployee why the tribal government should have nothing to say about In-
dian education. It will be said that the Federal Government pays for
Indian education and should therefore exercise complete control over it,
an ironic echo of the familiar argument that real-estate owners pay for
public education and should therefore control it. It will be said that In-
dians are not competent to handle educational problems. It will be said
that giving power to tribal councils will contaminate education with
"politics/'

None of these objections has any particular rational force. In several
cases teachers are now being paid not out of Federal funds but out of
tribal funds. So far as the law is concerned, an act of Congress that has
been on the statute books since June 30, 1834, specifically provides that
the direction of teachers, and other employees, even though they be paid
out of Federal funds, may be given to the proper tribal authorities wher-
ever the Secretary of the Interior (originally, the Secretary of War) con-
siders the tribe competent to exercise such direction. Indians are con-
sidered competent enough to serve on boards of education where public

INDIAN CONSTITUTIONS

schools have been substituted for Indian Service schools. And there is
no good reason why tribal "politics" deserves to be suppressed, any more
than national "politics." If these common arguments are without rational
force, they are nevertheless significant because they symbolize the un-
willingness of those who have power, positions, and salaries, to jeopardize
the status quo.

This is true not only in the field of education. It is true in the field
of health, community planning, relief, and all other municipal services.
It is true of government outside of the Indian Service, and perhaps it is
true of all human enterprise. The shift of control from a Federal bureau
to the local community is likely to come not through gifts of delegated
authority from the Federal bureau, but rather as a result of insistent
demands from the local community that it be entrusted with increasing
control over its own municipal affairs.

A fourth source of vitality in any tribal constitution is the community
of consciousness which it reflects. Where many people think and feel as
one, there is some ground to expect a stable political organization. Where,
on the other hand, such unity is threatened either by factionalism within
the tribe or by constant assimilation into a surrounding population, con-
tinuity of tribal organization cannot be expected.

This is a factor which shows every possible variation. At one extreme
of social solidarity are those pueblos that voted unanimously to accept the
Wheeler-Howard Act and for centuries have regularly cast unanimous
votes for their officers. At the other extreme are those areas of the North-
west where today, as in the days before Columbus, every family is a fac-
tion and the "tribe" is only a statistical concept. In between these extremes
are situations that respond readily to influences making for greater unity
of feeling or to influences breaking down the unity that exists. Of the
factors that strengthen unity of feeling, perhaps the most important is
pride in a common origin, history, and heritage. This is a factor that may
be considerably strengthened by bringing into the school curriculum his-
torical material dealing with the past achievements of the Indian groups,
and by strengthening interest in native games, native foods, native arts
and crafts, native dances and ceremonials. The young Indian who has
moved to a nearby town is likely to return to his people on the occasion
of an Indian festival, instead of moving farther away. And it is this
young Indian who is the "marginal citizen" whose movement determines
whether the tribal organization will endure.

227

THE INDIAN'S QUEST FOR JUSTICE

A fifth source of potential strength for any tribal organization lies in
the role which it may assume as protector of the rights of its members.

Where there is a popular consciousness of grievances — and the history
of most Indian tribes is filled with accounts of broken treaties, massacres,
land steals, and practical enslavement of independent tribes under dic-
tatorial rule by Indian agents, leaving a bitter, rankling resentment in
the hearts of the Indians — the governing body of the community must
seek their redress, whether against state officials, Indian Service employees,
white traders, or any other group.

In this field of activity, tribal governments can achieve significant re-
sults. A council, for instance, that employs an attorney to enjoin the en-
forcement of an unconstitutional statute depriving Indians of the right
to vote is likely to secure a first lien on the respect of its constituency and
materially increase the life expectancy of the tribal constitution. A tribal
council that makes a determined fight to secure enforcement of laws —
some of them more than a hundred years old — granting Indians prefer-
ence in the Indian Service employment will win Indian support even if it
loses its immediate fight. So with many other common grievances on
which collective tribal action is possible. A rubber stamp council that
simply takes what the Indian Office gives it is not likely to establish per-
manent foundations for tribal autonomy. Rubber is a peculiarly perish-
able material, and it gives oft a bad smell when it decays.

There is, then, no single answer that can be given to the question,
"How long will Indian constitutions last?" We may be sure that different
constitutions will perish at different ages. Some, no doubt, have been still-
born. Such constitutions may exist in the eyes of the law but not in the
hearts of the Indians, and at the first signal of official displeasure, they
will disappear. Other constitutions represent realities as stable as the
reality that is the United States of America or the City of St. Louis.

One who seeks a mathematical formula can perhaps measure the life
expectancy of various tribal constitutions by assigning numbers to the
factors we have discussed — the extent to which the organized tribe min-
isters to the common economic needs of the people, the degree in which
the organized tribe satisfies recreational and cultural wants, the extent
and efficiency of municipal services which the tribe renders, the general
social solidarity of the community, and the vigor with which the tribal
government expresses the dissatisfactions of the people and organizes the
wishes of the people along rational lines,

228

INDIAN CONSTITUTIONS

More generally one can say that a constitution is the formal structure
of a reality that exists in human hearts. An Indian constitution will
exist as long as there remains in human hearts a community of inter-
dependence, of common interests, aspirations, hopes, and fears, in realms
of art and politics, work and play.

229

The Spanish Origin of Indian Rights
in the Law of the United States

I. FOREWORD

To trace the origins of our Federal Indian law is a difficult task. The law
of the United States with respect to Indian tribes is a curious historical
patchwork in which may be found the product of many looms and many
weavers. One may divide this strange patchwork into its component
patches and find nearly four hundred federal treaties with Indian tribes,
about four thousand federal statutes, and an even larger number of
judicial and administrative decisions which, by and large, attempt to
interpret and to apply these treaties and statutes. The fact that there
are Spanish threads in this patchwork is of no greater significance than
the fact that some of the finest of our old Navajo Indian rugs contain red
threads (bayeta) that were secured by unraveling the red woolen under-
wear of Spanish soldiers. What is really important, after all, about the
Spaniards and the Navajo rugs is that the Spaniards (largely through the
intermediary of the Pueblo Indians) introduced into the country of the
Navajos the sheep and the wool of which Navajo rugs are made, and
introduced into the life of the Navajos the ways of the sheepherder and
weaver, which supplanted ways of the raider and hunter. These were
the real Spanish contributions to the Navajo rug.

So it is with our law. We should have a poor idea of the Spanish in-
fluence upon our Federal Indian law if we divided that tapestry and
noted which patches and threads were of Spanish origin. For then we
should lose the pattern and the creative principles of this law, and it is
this pattern and these creative principles that are the distinctive con-
tribution of Spanish juristic thought to our Federal Indian law. This
is not merely a fact of antiquarian interest. It is a fact of some importance
to the world of today and tomorrow. If our law of Indian affairs were
the result of a purely local adaptation of Anglo-American common law,

Published in Georgetown Law Journal, 1942.

230

SPANISH ORIGIN OF INDIAN RIGHTS

or a pure product of independent national legislation, we might not
expect it to have much relevance to the problems of inter-racial and inter-
cultural relations in other parts of the world. But if, on the other hand,
the spirit of this law and its creative principles came to us across wide
waters, and across wider gulfs of polity, religion, and culture, there must
be in this spirit and these principles something that is not merely local
and particular, something that is universal and enduring, something that
can be carried to other lands across wide waters and wider gulfs of polity,
religion and culture. Such is the significance of what might otherwise be
an interesting but unimportant problem for legal antiquarians.

Today, more than ever before, we need to study the legal relations
that have served to bind together in common cause and common effort
peoples of different races, different creeds, different social structures, and
different ways of life. In such a study we cannot afford to overlook the
relations of the United States to the Indian tribes within our territory.
The comparatively small number of Indians involved does not diminish
the importance of such studies. The fact is that there is probably no
dependent people in any part of the world which rallied to the support
of democracy with more devotion than the tribal Indians of the United
States. In the rate of volunteering for the armed services (particularly
in World Wars I and II) they far surpassed the white or black popula-
tions of the United States. In the proportion of their funds which they
voluntarily placed at the disposal of the Federal Government, through
subscription to war bonds or otherwise, they have again far surpassed the
rest of the country. They gave not only of blood and sweat and tears but
of brains as well. Descendants of great Indian strategists earned impor-
tant positions in our armed forces. It was to a member of the Osage Tribe,
Major General Tinker, that the all important job or rebuilding the air
forces in Hawaii was entrusted after Pearl Harbor, and he more than any
one else deserves credit for our air victory in the Battle of Midway,
where he himself lost his life. Had the United Nations found as staunch
defenders in the peoples of Egypt, Indo-China, the East Indies, Malaya
or Burma, what pen could rewrite the history of the early years of World
War II?

It may be doubted whether our tribal Indians are to be distinguished
in physical strength or courage or health or pugnacity or intelligence
from native populations in some other parts of the world that have not
rallied to the support of their governments in time of stress. At least the
hypothesis is worth examining that what has distinguished our tribal
Indians from these other native populations lies on a legal plane, that it
is, in essence, a relation to government capable of evoking loyalty, and

231

THE INDIAN'S QUEST FOR JUSTICE

that in other parts of the world, where a similar relationship between
peoples exists, as in the Philippines, a similar loyalty is likely to appear.
What is the nature of this legal pattern that has so dramatically shown
its capacity to evoke loyalty?

II. THE PATTERN OF FEDERAL INDIAN LAW

Let us be clear, in the first place, about the object of our search. We are
to trace the history of certain social ideals, ideals which have seldom
corresponded exactly to the realities of living but which have been close
enough to reality to attain the force of law. We are to look for origins of
pattern, spirit, principle, that bind together thousands of statutes and
decisions. To do that we must first reduce the maze of our Indian law to
a manageable scheme and take account of its basic principles. That is no
easy task, but the most comprehensive effort thus far made in this direc-
tion has traced the manifold detail of existing Federal Indian law to
four basic principles:

(i) The principle of the legal equality of races; (2) the principle o£
tribal self-government; (3) the principle of Federal sovereignty in In-
dian affairs; and (4) the principle of governmental protection of Indians.1

A brief examination into the legal content of these principles must
suffice for our present purposes.

/. Legal Equality

The legal status of tribal Indians, although different from, is not inferior
to, that of their white countrymen. Today all Indians born in the United
States are citizens of the United States.2 As citizens they are entitled to
the rights of suffrage guaranteed by the Fifteenth Amendment to the
Federal Constitution,3 and they are likewise entitled to hold public office.

1. See Introduction, by Solicitor Nathan R. Margold, to Cohen, Handbook of
Federal Indian Law (1941) pp. vii to xv.

2. This has been true since the adoption of the act of June 2, 1924, 43 Stat. 253, 8
U.S.C. § 3 (1934)- Prior to that time most Indians had become citizens under special
laws and treaties. See, e.g., Treaty of September 27, 1830, with Choctaws, art. 14, 7
Stat. 333, 335.

3. This Amendment declares: "The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of
race, color, or previous condition of servitude." The Supreme Court, interpreting this
provision in United States v. Reese, 92 U.S. 214 (1875) at p. 218, asserted: "If citizens
of one race having certain qualifications are permitted by law to vote, those of another
having the same qualifications must be." Accord, Neal v. Delaware, 103 U.S. 370 (1880).

SPANISH ORIGIN OF INDIAN RIGHTS

The process of conferring citizenship upon Indians has been a slow
process. It began with a ringing declaration in 1776 "that all men are
created equal, that they are endowed by their Creator with certain un-
alienable Rights, that among these are Life, Liberty, and the pursuit of
Happiness/' The process reached its conclusion only in 1924, when the
last non-citizen Indians gained citizenship. But throughout the years
when many or most Indians were non-citizens, their legal status as human
beings was not subordinated to that of their white countrymen. Their
lives and property were held to be entitled to legal protection against
violence. When the United States Army attempted to exercise military
control over a group of peaceful Indians who refused to remain on the
reservation assigned to them, the Indians were freed from army control
by the issuance of a writ of habeas corpus.4 Indians were recognized as
having legal capacity to sue,5 to make contracts,6 to hold public office,7
and to enjoy all the civil liberties guaranteed to their white neighbors,
citizen or alien.8 Their legal status was, and is, peculiar only because they
are members of special political bodies, tribes, which largely take the
place that states and municipalities occupy towards other citizens of the
United States. The political conception of the tribe is thus the origin of
whatever is distinctive about the legal position of the Indian in the law
of the United States.

Statutes in three states, Washington, Arizona, and New Mexico, purport to restrict
the constitutional right of Indians to vote. Such statutes have been declared uncon-
stitutional by two Attorney Generals of the State of Washington (Op. Att'y. Gen. W.
V. Tanner, June 15, 1916; Op. Att'y. Gen. G. W. Hamilton, April i, 1936); and by the
Solicitor of the Department of the Interior (Op. of Solicitor, M. 29596, Jan. 26, 1938);
but have been upheld by the courts of Arizona, Porter v. Ha//, 34 Ariz. 308, 271 Pac.
411 (1928). [Ed. note: In 1948, as General Counsel of the Association on American
Indian Affairs, Felix Cohen presented the brief for the Arizona Indians which won
them the right to vote (Harrison v. Laveen, 67 Ariz. 337, 196 Pac. 2d 456, 1948). In the
same year he argued the voting case for the New Mexico Indians before a three-
judge court and won a unanimous decision on the constitutional right of Indians
to the franchise (Trujillo v. Garley, D.C., N.M. 1948, unreported). See below, pp.
328-29.]

4. United States, ex rel. Standing Bear v. Crook, 25 Fed. Gas. 695, No. 14,891 (C.C.
Nebr. 1879).

5. Felix -a. Patrick, 145 U.S. 317, 332 (1892); Deere v. St. Lawrence River Power Co.,
32 F. (2d) 550 (C.C.A. 2d, 1929).

6. Jones v. Meehan, 175 U.S. i (1899); and see United States v. Paine Lumber Co.,
206 U.S. 467 (1907).

7. 13 Op. Att'y. Gen. 27 (1869), holding an Iroquois Indian, General Parker, eligible
for the post of Commissioner of Indian Affairs.

8. Cohen, "Indian Rights and the Federal Courts" (1940) 24 Minn. L. Rev. 145;
Cohen, op. cit. supra, note i, pp. 177-81.

*33

THE INDIAN'S QUEST FOR JUSTICE

2. Tribal Self-Government

The principle that an Indian tribe is a political body with powers of
self-government was first clearly enunciated in the jurisprudence of the
United States by Chief Justice Marshall in the case of Worcester v.
Georgia* Indian tribes or nations, he declared, ". . . had always been
considered as distinct, independent, political communities, retaining
their original natural rights, . . ." To this situation was applied the
accepted rule of international law: ". . . the settled doctrine of the law
of nations is, that a weaker power does not surrender its independence-
its right to self-government— by associating with a stronger, and taking
its protection."

From these premises Chief Justice Marshall concluded that the State
of Georgia had no right to interfere with the laws and territory of the
Cherokee Tribe. Following this decision, the federal courts have held
that Indian tribes have all the powers of self-government of any sover-
eignty except in so far as those powers have been modified or repealed by
act of Congress or by treaty.10 Hence over large fields of criminal and
civil law, and particularly over questions of tribal membership, inher-
itance, tribal taxation, tribal property, domestic relations, and the form
of tribal government, the laws, customs, and decisions of the proper tribal
governing authorities have, to this day, the force of law.

5. Federal Sovereignty

At the present time it may be laid down as a rough general rule that
Indians on an Indian reservation are not subject to the local law of the
state in which they reside.11 This exemption is of particular importance
in the fields of criminal law and taxation. The general rule has been
modified only in a few particulars by congressional action conferring
upon states specific powers over certain subjects.12

9. 6 Pet. 515, 559-56o (U.S. 1832).

10. Ex parte Crow Dog, 109 U.S. 556 (1883); Standley v. Roberts, 59 Fed. 836 (C.C.A.
8th, 1894); Talton v. Mayes, 163 U.S. 376 (1896); Waldron v. United States, 143 Fed.
413 (C.C.S.D. 1905); Jones v. Meehan, 175 U.S. i (1899); Buster v, Wright, 135 Fed.
947 (C.C.A. 8th, 1905), app. dism. 203 U.S. 599 (1906); Cherokee Nation v. Journeycake,
155 U.S. 196 (1894); United States v. Quiver, 241 U.S. 602 (1916); Turner v. United States
and Creek Nation, 51 Ct. Cl. 125, aff'd, 248 U.S. 354 (1919); Pueblo of Santa Rosa t/.
Fall, 273 U.S. 315 (1927).

11. Worcester v. Georgia, 6 Pet. 515 (U.S. 1832); United States v. Kagama, 118 U.S.
375 (1886); United States v. Sutton, 215 U.S. 291 (1909).

12. The most important of such laws is the General Allotment Act of 1887, 24 Stat.
388, 25 U.S.C. § 348 (1934), which subjects Indian estates to state laws of inheritance.

SPANISH ORIGIN OF INDIAN RIGHTS

The fact that Indian tribes are largely exempt from the operations of
the local laws of the states and their political subdivisions derives from
the fact that the Constitution of the United States vests in the national
government rather than in the states the three powers upon which our
law of Indian affairs is primarily based — the war-making power, the
treaty-making power, and the power to regulate commerce with Indian
tribes. In practice, this centralization of federal sovereignty over Indian
affairs has proved a powerful weapon against oppression. Again and again
the federal courts have intervened to restrain the attempts of local au-
thorities to infringe upon Indian rights.13 As the Supreme Court of the
United States once said: "These Indian tribes are the wards of the
nation. . . . They owe no allegiance to the States, and receive from them
no protection. Because of the local ill feeling, the people of the States
where they are found are often their deadliest enemies/' 14

The functional significance of this principle of federal sovereignty
over Indian affairs lies in the fact that Indians, in conflicts of interest
with non-Indian neighbors, have been able to call upon the Federal
Government to aid in the protection of Indian rights.15

4. Federal Protection of Indians

Intercourse between people of widely disparate cultural levels inevitably
affords opportunities for exploitation, oppression, and debauchery. The
first white traders in America offered the natives new weapons, new
drinks, and new tools, all of which were capable of destroying native
life, health, and culture. In exchange for these deadly but apparently
irresistible gifts, the whites were able to demand surrender of the land
from which the Indian drew his sustenance. Warped, poisoned, and
armed with deadly weapons, the displaced tribe would be pushed on to
the lands of another tribe to spread the seeds of destruction. This was
the basic pattern; local bounties for native scalps and the sale to Indians
of blankets infected with small-pox were obscene and unnecessary em-
bellishments.16

13. See Cohen, supra note 8, 24 Minn. L. Rev. 145.

14. United States v. Kagama, 118 U.S. 375, 383 (1886).

15. Thus, for example, the act of March 3, 1893, 27 Stat. 612, 631, 25 U.S.C. § 175
(1934), provides: "In all States and Territories where there are reservations or allotted
Indians the United States district attorney shall represent them in all suits at law and
in equity."

16. In 1704, for example, Connecticut offered bounties from the public treasury of
five pounds for every Indian scalp. Conn. Records, IV, 463.

Lord Jeffrey Amherst, English Commander-in-chief, wrote to Colonel Bouquet,
in 1763 or 1764: "You will do well to try to inoculate the Indians [with small-pox]

THE INDIAN'S QUEST FOR JUSTICE

The problem facing our central government from the start was how
to stop, or at least minimize, this process of exploitation and extermina-
tion. The answer chosen was the imposition of a rigid control over all
intercourse between its own subjects and the native population. This
control, designed to protect the Indian without absolutely forbidding
intercourse between the two races, has been the guiding motif of federal
legislation on Indian affairs down to the present date.

In 1790 the first Federal Congress adopted the policy of regulating
trade with the Indians through a system of licensing traders.17 Except
for a brief period, from 1796 to 1822, when a system of government trad-
ing houses was maintained,18 the principle of control of Indian trade
through licenses has been in force. Under this system federal supervision
of the character and quality of goods sold and prices charged has been
possible. Sales of liquor, and of firearms and ammunition not needed for
useful purposes, have been banned.

The most important subject of trade between Indians and whites was
inevitably the land which the Indians possessed and which the white
immigrants needed. It was about trade in land that the most stringent
restrictions have been placed by the Federal Government. For many
decades transfers of Indian land could not be made by private transaction
but required for their validity a formal treaty between the Indian tribe
and the United States.19 Down to the present day tribal land may not
be sold except by a special act of Congress. Where, however, Indian lands
have been individualized, general legislation permits the sale of the indi-
vidual allotments under conditions designed to safeguard the interest of
the Indian vendor.20 Generally, such safeguards include either the re-
quirement that the Indian vendor must hold the land for a fixed period
of time, usually 25 years, before receiving a "fee patent" entitling him to
sell the land, or a requirement that the particular transaction should be
approved by the Secretary of the Interior.

by means of blankets, as well as to try every other method that can serve to extirpate
this execrable race. I should be very glad your scheme for hunting them down by
dogs could take effect." Channing, History of the United States, Vol. 3 (1912), "The
American Revolution — 1761-1789," pp. 15, 27, n. 2.

17. Act of July 22, 1790 (i Stat. 137).

18. Act of April 18, 1796 (i Stat. 452); act of April 21, 1806 (2 Stat. 402); act of
March 2, 1811 (2 Stat. 652); act of March 3, 1815 (3 Stat. 239); act of March 3, 1817 (3
Stat. 363); act of April 16, 1818 (3 Stat. 428); act of March 3, 1819 (3 Stat. 514); act of
March 4, 1820 (3 Stat. 544); act of March 3, 1821 (3, Stat. 641). The system of govern-
ment trading houses was terminated by the act of May 6, 1822 (3 Stat, 682).

19. Act of July 22, 1790 (i Stat 137). The first federal statute containing this
restriction on land transfers was reenacted from time to time and is now embodied in
25 ILS.C. g 177 (1934).

20. See Cohen, op. cit. supra, note i, c. 11.

236

SPANISH ORIGIN OF INDIAN RIGHTS

The leasing of Indian lands for short periods has been allowed in
recent years, but only under conditions designed to protect the Indian
lessors. In most Indian leases, whether tribal or individual, the approval
of the Secretary of the Interior or of some subordinate officer is required.

By maintaining its control over the transactions by which Indians dis-
pose of land, the Federal Government has been able to establish a large
degree of control over the income received by the Indians from such dis-
position. Sale or leasing of land has been a major source of income for
most Indian tribes, and control of this income has permitted the Federal
Government to direct a considerable portion of the Indian income into
educational, health, and other public services for Indians. A substantial
part of our Federal Indian law today is concerned with the Federal dis-
position of Indian moneys.

The principle of federal protection of Indian rights has proved to be of
special importance in the maintenance of Indian land rights. By treaty
and by statute the United States undertook to protect the Indian tribes
in their possession of vast areas of land. It is true that this Indian posses-
sion was not considered a perfect title, and in the cases it is commonly
said that legal title to such lands is in the United States, with a right of
use and occupancy in the Indians. But these are subtleties of feudal legal
theory which meant nothing to the Indians. Our courts have repeatedly
said that the Indian right of occupancy and use is as sacred as the fee
title,21 and it is certainly more substantial than the naked legal title
which legal theory locates in the Federal Government. Indeed, it may be
said that lands held by "Indian title" are worth more to the Indian
holders than are lands held in fee simple; for lands of the former sort
are exempt from state taxation and from execution under the process of
state courts, these being two channels through which much individually
owned Indian land has slipped out of Indian hands.

It is important to realize that what the Federal Government undertook
to protect was not only the welfare of the Indians — a slippery phrase
which might have been twisted to justify a governmental oppression
worse than that of private oppressors 22 — but the rights of the Indians.
Such rights included rights of personality, rights of self-government, and
rights of property. Of the Indian's rights of personality and self-govern-
ment we have already briefly spoken. Of the Indian property rights, the
most important was the right of the tribe to land occupied from time
immemorial. This right federal jurisprudence has consistently recognized.

21. See Mitchel v. United States, 9 Pet. 711, 747 (1835); United States v. Shoshone
Tribe, 304 U.S. m, 117 (1938); i Ops. Att'y. Gen. 465, 466 (1821); 34 Ops. Att'y. Gen.
181, 187 (1924).

22. See pp. 235-36, infra.

237

THE INDIAN'S QUEST FOR JUSTICE

The most recent instance of such recognition may be found in the
opinion of the United States Supreme Court in the case of the Walapai
Tribe.23 In that case a railroad claimed certain lands in northern Arizona
under a Congressional land grant made in 1866 in aid of railroad con-
struction.24 These lands were claimed by the Walapai Tribe as part of
its ancestral homeland. The Supreme Court, reversing the decision of
two lower courts, held that the railroad was not entitled to any land
which had been occupied by the Walapai Tribe before the grant to the
railroad and had not been voluntarily relinquished by the Indians. Thus
was reaffirmed the principle laid down by Chief Justice Marshall more
than a century ago 25 that the Indian tribes have a full and complete legal
right to lands which they have continuously and exclusively occupied,
and that this right will be protected by the federal courts against any
interference by private parties or by unauthorized public officials.

The validity of Indian possessory rights has been upheld by the Su-
preme Court even against the statutory protector of the Indian, the Sec-
retary of the Interior, in days when that officer proved less solicitous for
the rights of the Indian than is the present incumbent of that position.*
Thus, in the case of Lane v. Pueblo of Santa Rosa,™ the Supreme Court
held that a group of Papago Indians had legal capacity to bring suit
against the Secretary of the Interior to prevent that officer from disposing
of Indian lands under laws relating to the public lands. Likewise, in
1924, when the later notorious Secretary of the Interior Albert Fall sought
to dispose of minerals in certain Indian lands without Indian consent,
Attorney General Stone issued an opinion holding that the Secretary of
the Interior had no right to dispose of such minerals in the manner pro-
posed, for the reason that the minerals in question belonged to the In-
dians, whose property rights were "complete and exclusive." 27

The foregoing examples, while they are very far from giving the full
content of the principle of federal protection of Indians, show at least
the direction in which that principle has guided the development of our
law and the intimate inter-dependence of this protective principle and

23. United States, as Guardian of the Indians of the Tribe of Hualpai v, Sante Fe
Pacific R.R. Co., 314 US. 339 (1941).

24. Act of July 27, 1866 (14 Stat. 292).

25. Johnson v. Mclntosh, 8 Wheat. 543 (U.S. 1823); Worcester v. Georgia, 6 Pet.
515 (U.S. 1832).

26. 249 U.S. 110 (1919).

27. 34 Op. Att'y. Gen. 181 (1824). Advice to the same effect had been given to Secre-
tary Fall by the Solicitor of the Department of the Interior (Opinion of Feb. 12, 1924. A.

2592).
* [Ed. note: The reference is to Harold L. Ickes.]

238

SPANISH ORIGIN OF INDIAN RIGHTS

the companion principles of the political equality of races, the right of
tribal self-government, and the doctrine of Federal sovereignty in Indian
affairs.*

III. THE PATTERN OF SPANISH INDIAN LAW

In the Anglo-American literary and historical tradition the Spaniards'
treatment of the Indian has been so long held up to view as a pattern of
cruelty and treachery that it may be considered heretical to argue at this
late date that the humane principles which guide our own law in Indian
affairs all faithfully follow the teachings of Spanish theologians and the
edicts of Spanish kings. And yet this thesis will not sound so startling
once we recognize that although the behavior of our own citizens and offi-
cials towards the Indians has frequently been marked by acts of cruelty
and treachery, it is by our own courts and laws that these acts of cruelty
and treachery have been denounced, the perpetrators of these acts pun-
ished, and the victims of these acts, or their descendants, recompensed in
the only kind of measure that human compensation for such acts can
follow.28 So it was with Spain. It would be childish to gloss over the
inhumane aspects of the Spanish conquest of the New World. Yet there
is an important difference between these aspects of the treatment of
Indians in the New World in the fifteenth and sixteenth centuries and
what Nazis have done in the Old World in the twentieth. Against the
cruelties of the Spanish invaders the clear voice of protest was raised by
loyal Spaniards and faithful Catholics to the King of Spain and to the
Pope himself,29 and both King and Pope repeatedly denounced the acts

* [Ed. note: In a later decision the Supreme Court did not go so far as to hold
that Indian possessory rights not recognized by Congress were under constitutional
protection. (Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).)]

28. At the present time [1942] there are pending before the federal courts, by au-
thorization of Congress, Indian suits claiming an aggregate of more than $250,000,000
for violations of treaties and other injuries. [Ed. note: Many additional claims were
subsequently filed under the Indian Claims Commission Act which was passed in 1946
(60 Stat. 1049). Much of the legal draftsmanship of the act had been entrusted to the
author in his position as Associate and Acting Solicitor of the Department of the
Interior.]

29. The report to the Emperor Philip, Brevissima Relation de la Destruyccion de
las Indias, completed by Fra Bartholomew de las Casas at Valencia on December 8,
1542, contains perhaps the most trenchant criticism of Spanish administration in the
New World that has ever been written. It is presented to the Emperor by the writer
on the basis of the stated assumption of the rectitude of royal hearts: "If any defect,
wrong, and evil is suffered, there can be no other cause than that the Kings are ignorant
of it; for if such were manifest to them, they would extirpate them with supreme in-

THE INDIAN'S QUEST FOR JUSTICE

of oppression committed by brigands that brooked no transoceanic con-
trol. So it is that while the acts of cruelty and treachery of lawless
men wrought a havoc that eventually brought Spanish rule in the New
World to an end, the legal ideals which Spanish teachers proclaimed, and
which Crown and Holy See ratified, provided a humane and rational basis
for an American law of Indian affairs.

i. Legal Equality

Of the first principle of our own Indian law, the equality of races, the
works of the Spanish theologian and jurist, Francisco de Vitoria, offer
eloquent elucidation. In an attempt to justify the denial to Indians of the
rights enjoyed by other humans, the argument had been widely advanced
that Indians were heretics, tainted with mortal sin, and irrational. To
this argument Vitoria replied that even heretics and sinners were en-
titled to own property and could not be punished for their sins without

dustry and watchful diligence." The following sections of the report typify the story
that is told in some detail, largely on the basis of the personal observations of Las
Casas. These observations were, to be sure, supplemented by testimony presented in
various law courts and further supplemented by the observations of some of the co-
workers of Las Casas in the Western Hemisphere.

"The Indies were discovered in the year fourteen hundred and ninety-two. The
year following, Spanish Christians went to inhabit them, so that it is since forty-nine
years that numbers of Spaniards have gone there: and the first land, that they invaded
to inhabit, was the large and most delightful Isle of Hispaniola, which has a cir-
cumference of six hundred leagues.

"Among these gentle sheep, gifted by their Maker with the above qualities, the
Spaniards entered as soon as they knew them, like wolves, tigers, and lions which had
been starving for many days, and since forty years they have done nothing else; nor do
they otherwise at the present day, than outrage, slay, afflict, torment, and destroy them
with strange and new, and diverse kinds of cruelty, never before seen, nor heard of,
nor read of, of which some few will be told below: to such extremes has this gone that,
whereas there were more than three million souls, whom we saw in Hispaniola, there
are today, not two hundred of the native population left.

"Now in God's name consider, you, who read this, what sort of deeds are these, and
whether they do not surpass every imaginable cruelty and injustice, and whether it
squares well with such Christians as these to call them devils; and whether it could
be worse to give the Indians into the charge of the devils of hell than to the Christians
of the Indies.

"There are others, who go hunting with their dogs in the morning and when one
is asked on his return for dinner how it has fared with him, he replies; 'it has fared well

240

SPANISH ORIGIN OF INDIAN RIGHTS

trial30 and that the Indians were at least as rational as some of the
peasants of Spain.31 Implicit in the argument of Vitoria, who cites as
precedents in support of Indian rights the cases of heretics and sinners
in Europe and ancient Palestine whose rights were acknowledged by the
highest Church authorities, is the doctrine that certain basic rights
inhere in men as men, not by reason of their race, creed, or color, but by
reason of their humanity.

with me, because I have left perhaps fifteen or twenty villeins killed by my dogs/

"I was induced to write this work I, Fray Bartholomew de las Casas, or Casaus,
friar of St. Dominic, who by God's mercy do go about this Court of Spain, trying to
drive the hell out of the Indies, and to bring about that all those numberless multi-
tudes of souls, redeemed with the blood of Jesus Christ, shall not hopelessly perish
forever; moved also by the compassion I feel for my fatherland, Castile, that God may
not destroy it for such great sins, committed against His faith and honour and against
fellow creatures. . . ." See MacNutt, Bartholomew de Las Casas, His Life, His Aposto-
late, and his Writings (1909) pp. 311, 314, 315-16, 330, 411-12.

Here and there, in this terrible chronicle, a happier tale is told, as when Las Casas
tells of the visit of Fray Jacomo, with four Franciscan monks, to Yucatan in 1554:

"They sent ahead certain Indians from the province of Mexico as messengers, to
inquire whether the natives were satisfied that the said monks should enter their coun-
try, to bring them news of the one only God, who is God and true Lord of all the
world.

"They [the Indians] assembled many times and consulted about the thing, having
first made many inquiries as to what sort of men these were, who called themselves
fathers and brothers, and as to what they laid claim; and in what they were different
from the Christians from whom they had suffered so many offences and such injustice.

"They resolved at last to receive them, on the condition that they came alone with
no Spaniards. . . .

"And afterwards they gave them their own children, whom they love more than
the light of their eyes, that they might train them. And they built them churches,
monasteries and houses: and friars were invited to other provinces, to preach and
bring the natives to the knowledge of God and of him whom they called the great
king of Castile.

"And, persuaded by the monks, the Indians did a thing never done again up to
the present day; and all that some of those Tyrants pretend about those kingdoms
being destroyed by the friars, is falsehood and lies.

"Twelve or fifteen lords, each ruling many vassals and large territories, assembled
their people and, after taking their votes and consent, subjected themselves of their
own will to the dominion of the kings of Castile, receiving the Emperor, as King of
Spain, for their supreme and universal sovereign; and they made some signs, like signa-
tures, which I have in my possession, together with the attestations of the said friars."
Id. at pp. 365-67.

30. Victoria, De Indis et de Jure Belli Relectiones (Nys' ed. 1917) § i, pars. 4-19.
These dissertations were delivered in 1532 at the University of Salamanca where
Franciscus de Victoria (or Francisco de Vitoria) was professor of theology.

31. Id., par. 24.

241

THE INDIAN'S QUEST FOR JUSTICE

This doctrine of Vitoria was given papal support in 1537 by the Bull
Sublimis Deus, in which Pope Paul III proclaimed:

We, who, though unworthy, exercise on earth the power of our
Lord and seek with all our might to bring those sheep of His flock
who are outside, into the fold committed to our charge, consider,
however, that the Indians are truly men and that they are not only
capable of understanding the Catholic faith but, according to our
information, they desire exceedingly to receive it. Desiring to provide
ample remedy for these evils, we define and declare by these our
letters, or by any translation thereof signed by any notary public
and sealed with the seal of any ecclesiastical dignitary, to which the
same credit shall be given as to the originals, that, notwithstanding
whatever may have been or may be said to the contrary, the said
Indians and all other people who may later be discovered by Chris-
tians, are by no means to be deprived of their liberty or the posses-
sion of their property, even though they be outside the faith of
Jesus Christ; and that they may and should, freely and legitimately,
enjoy their liberty and the possession of their property; nor should
they be in any way enslaved; should the contrary happen, it shall
be null and of no effect.32

Almost word for word, this declaration of human rights is repeated in
the first important law of the United States on Indian relations, the
Northwest Ordinance of 1787, adopted two years before the Federal Con-
stitution, which proclaims:

The utmost good faith shall always be observed towards the In-
dians; their lands and property shall never be taken from them
without their consent; and in their property, rights, and liberty they
never shall be invaded or disturbed, unless in just and lawful wars
authorized by Congress; but laws founded in justice and humanity
shall, from time to time, be made, for preventing wrongs being done
to them, and for preserving peace and friendship with them.

In the Spanish Laws of the Indies one finds a consistent adherence to
the principle of racial equality. Thus Book 4, Title 12, Law 9, declares:
"We command that the farms and lands which may be granted to Span-
iards be so granted without prejudice to the Indians; and that such as
may have been granted to their prejudice and injury be restored to who-

32. MacNutt, op. cit. supra note 29, p. 429.

242

SPANISH ORIGIN OF INDIAN RIGHTS

ever they of right shall belong." & A further provision included in the
Laws of the Indies is one requiring special proceedings to determine
whether farms owned by Spaniards are located to the prejudice of the
Indians, and requiring the removal of any such farms.34 Other provisions
of the Laws of the Indies provided that Indians might establish mining
claims in the same manner as Spaniards.35

More significant perhaps than any of these positive affirmations of In-
dian rights is the negative fact that the Laws of the Indies contain no
provisions which place the Indian in a position legally inferior to that
of the Spaniards. This is not to say that Indians were not widely op-
pressed under Spanish rule but merely to suggest that the oppression was
in defiance of, rather than pursuant to, the laws of Spain.

As the American Colonies appealed to the traditional legal rights of
Englishmen when they rebelled against a royal administration that had
violated those rights, so the peoples of Latin America appealed again and
again to the humane Spanish legal ideal of racial equality in rebelling
against administrations which had been faithless to that ideal. Thus it
was that the Plan of Iguala, in which the Mexican War of Independence
proclaimed its ideals, asserted: "All the inhabitants of New Spain, with-
out distinction, whether Europeans, Africans or Indians, are citizens of
this monarchy, with the right to be employed in any post according to
their merit and virtues/' 36

In this respect, then, the guiding legal principle of United States law
is one with the principle of Spanish jurisprudence, whatever may have
been the failure, on both sides, to make practice conform to ideal.

2. Tribal Self-Government

Again one may find in the writings of Vitoria the first clear formulation
of the principle of tribal self-government. The factual basis of this right
the Spanish jurist found in the fact that "there is a certain method in
their affairs, for they have polities which are orderly arranged and they
have definite marriage and magistrates, overlords, laws, and workshops,
and a system of exchange, all of which call for the use of reason; they
also have a kind of religion." 37 Against the pretensions of Spanish ad-
ministrators who claimed Indian consent to their tyrannies, Vitoria

33. Law of June 11, 1594 (RecopilaMn de Leyes de Los Reynos de las Indias [1681]
bk. 4, tit. 12, law 9).

34. Id., bk. 2, tit. 31, law 13 (Instructions to Viceroys, 1596, c. 21).

35. Id., bk. 4, tit. 19, laws 14-16.

36. United States v. Ritchie, 17 How. 525, 538 (U.S. 1854).

37. Vitoria, op. cit. supra note 30, § i, par. 23.

243

THE INDIAN'S QUEST FOR JUSTICE

sought to defend the principle of Indian self-government by pointing out
that fear or ignorance on the part of the Indians would vitiate the legal
force of such consent.38 In this he set forth a principle which our federal
courts have had frequent occasion to follow.39 Nevertheless, Vitoria rec-
ognized, and the Spanish Crown recognized, as the United States has
done, that by democratic process an Indian group might limit its own
powers, transferring certain powers of sovereignty to another protecting
nation,40 without thereby destroying its internal autonomy. This, in ef-
fect, has been the basis of our 400 treaties with Indian tribes, and al-
though the period of dealing with Indian tribes by treaty has passed, this
principle of treating with tribes through voluntary agreement and ma-
jority rule characterizes the adoption of tribal constitutions and charters
by Indian tribes today under legislation sponsored in 1934 by President
Roosevelt.41

). Central Control of Indian Affairs

While one could not expect to see the principle of federal sovereignty
over Indian affairs, which dominates the law of the United States, di-
rectly paralleled in the jurisprudence of Spain, which was not a federal
republic, the fact remains that the idea of central control, as distinguished
from local control, was cardinal in both systems and served the same
function. Just as the federal courts in the United States, and other federal
officials, have had repeatedly to intercede for the protection of Indian
rights threatened by white neighbors or local officials in Indian areas, so
the Spanish Crown had repeatedly to intercede to protect the Indians

38. Id., §2, par, 16.

39. While the federal courts have never invalidated an Indian treaty on grounds of
duress, they have consistently held that in view of the inequality of bargaining power
all ambiguities in such treaties must be resolved in favor of the Indians. Worcester v.
Georgia, 6 Pet. 515 (U.S. 1832); The Kansas Indians, 5 Wall. 737 (U.S. 1866); Winters
v. United States, 207 U.S. 564 (1908).

40. "A State can appoint any one it will to be its lord, and herefor the consent
of all is not necessary, but the consent of the majority suffices. For, as I have argued
elsewhere in matters touching the good of the State the decisions of the majority bind
even when the rest are of a contrary mind; otherwise naught could be done for the
welfare of the State, it being difficult to get all of the same way of thinking." Vitoria,
op. cit. supra note 30, § 3, par. 16.

41. 48 Stat. 984, 25 U.S.C. 461 et seq. (1934). [Ed. note: The statute refers to the
Wheeler- Howard Act of 1934, later known as the Indian Reorganization Act. It, as well
as the tribal constitutions and charters adopted under it, was largely the result of the
legal draftsmanship of the author in his official capacity as a member of the Solicitor's
Staff of the Department of the Interior.]

244

SPANISH ORIGIN OF INDIAN RIGHTS

against similar threats. To this end, the office of "General Protector of
all Indians" was bestowed by the King of Spain in 1516 upon the leading
champion of Indian rights against official corruption and incompetence,
Bartholomew de las Casas,42 much as four centuries later a similar office
was conferred by President Roosevelt upon a worthy successor in the
courageous tradition of Las Casas, John Collier. To this end, too, the
Council of the Indies, in which supreme power over Indian affairs was
vested, was established as a direct adviser to the King of Spain, and su-
preme over all local officials in questions pertaining to Indian affairs.
Some such motive must have underlain the insistence of Fra Vitoria that
Spaniards in the New World, even when unjustly attacked by Indians,
could "build fortresses and defensive works" but could wage war only
with "the authorization of their sovereign" 43 and provided that such war
was not used as a pretext for slaying the conquered or despoiling them of
their goods or seizing their cities.44 How close these words are to the
language of the Northwest Ordinance of 1787, which forbids local In-
dian wars by declaring: "and in their property, rights, and liberty they
never shall be invaded or disturbed, unless in just and lawful wars au-
thorized by Congress: . . ."

It is a striking fact that so often in the history of Spain, Spanish-
America, and the United States, oppression of Indians has come from
local neighbors and officials and help has come from a far-off central
government. Perhaps it is easier for legal ideals to live in a place far
enough from the facts to which they are applied so that perspective in
judgment is possible and long-range values are not sacrificed to imme-
diate, petty advantages.

4. Protection of Indian Rights

The doctrine that the Crown had a special responsibility for the protec-
tion of Indian rights was highly developed in Spanish law. Thus, for
example, the King's attorneys were required to appear on behalf of the
Indians in all land cases, and in all cases involving land grants, to which
Indians might be parties.45 Where the suit was between the Indians and
the Crown the court was required to appoint a special attorney for the
Indians.46 That Spaniards often trespassed against Indian rights was

42. MacNutt, op. cit. supra note 29, p. 86.

43. Vitoria, op. cit. supra note 30, § 3, par. 6.

44. Ibid.

45. Law of May 24, 1571 (op. cit. supra note 33, bk. 2, tit. 18, law 36).

46. Law 35, approved Feb. 13, 1554.

245

THE INDIAN'S QUEST FOR JUSTICE

clear, as is manifest from the fact that in Spanish law, as in the law of
the United States, a statute for the protection of Indian rights will often
be substantially reenacted from time to time, indicating that the earlier
enactment has come to be disregarded or entirely forgotten. Such a stat-
ute, for instance, is the Royal Cedula of June 4, iGSy,47 which reenacted
long-standing prohibitions against trespass upon Indian lands and set
forth the occasion of its enactment in these terms: Spanish ranch owners
"are encroaching upon the lands of the latter [Indians], taking the same
away from them, either by fraud or violence, by reason of the poor In-
dians abandoning their houses and settlements this being what the Span-
iards long for and aim at, . . ."

Not only did Spain enact ordinances of special stringency to protect
Indian lands against trespass, but it sought likewise to protect Indians
against the superior bargaining power of the white race by outlawing
all transfers of Indian property not made before an appropriate judicial
officer under conditions of notice designed to bring to the Indian an
adequate return for that which he sold.48

Where injuries were committed against Indians by Spaniards, the
Spanish law required that such injuries should be punished more severely
than similar injuries against Spaniards.49

Many other instances might be cited of specific laws exemplifying the
responsibility of the Crown for the protection of Indian rights. In Span-
ish jurisprudence, however, as in our own, there was always danger that
a concept of special responsibility for the protection of Indian rights
might come to be transformed into a justification for the exploitation of
Indians and the confiscation of their property. The institution of guard-
ianship (encomienda) in Hispanic America, like the old "reservation
system" in the United States, shows how easily this transition may take
place. It must be said, however, that some of the early Spanish jurists
clearly saw and warned against this danger. Thus, Vitoria in considering
claims to a power of guardianship based upon the superior administra-
tive capacities of the Spaniards as compared with the natives, while de-
clining either to confirm or condemn such a claim, is careful to point out

47. Hall, Laws of Mexico (1885) p. 64.

48. Op. cit. supra note 33, bk. 6, tit. i, law 27.

49. The Law of Dec. 19, 1593, provides: "ordenamos y raandamos que scan castigados
con mayor rigor los espanoles que injuriaren, u ofendieren, o maltrataren a indios,
que si los mismos delitos se cometiesen contra espanoles y los declaramos por delitos
publicos,"

(We ordain and command that Spaniards who injure or offend or maltreat Indians
shall be punished with greater severity than if the same tortious acts had been com-
mitted against Spaniards, and we declare such acts to be public offenses*)

246

SPANISH ORIGIN OF INDIAN RIGHTS

that if such a claim is valid it would have to be subject "to the limitation
that any such interposition be for the welfare and in the interests of the
Indians and not merely for the profit of the Spaniards. For this is the
respect in which danger to soul and salvation lie." 50 An echo answers,
400 years after, in the voice of Justice Cardozo, distinguished descendant
of Fra Vitoria's compatriots:

Power to control and manage the property and affairs of Indians
in good faith for their betterment and welfare may be exerted in
many ways and at times even in derogation of the provisions of a
treaty. . . . The power does not extend so far as to enable the Gov-
ernment "to give the tribal lands to others, or to appropriate them
to its own purposes, without rendering, or assuming an obligation
to render, just compensation . . . ; for that 'would not be an ex-
ercise of guardianship, but an act of confiscation/ "... The right
of the Indians to the occupancy of the lands pledged to them, may
be one of occupancy only, but it is "as sacred as that of the United
States to the fee." . . . Spoliation is not management.51

IV. THE HISTORIC CONNECTIONS BETWEEN SPANISH LAW

AND THE LAW OF THE UNITED STATES

To show that the basic principles of the law of the United States relating
to Indian rights were derived from Spanish sources, it is not enough to
show a basic similarity of principle in the two legal systems. Conceivably
such similarity might be fortuitous or the result simply of similar prac-
tical situations calling for similar legal treatment. But I think it can be
shown that the similarities of principle noted in the foregoing parts of
this paper were not fortuitous or the outcome of legal systems isolated
from each other but were rather the result of definite Spanish influences
which molded the development of legal doctrine in the United States.

To trace the historic ways in which Spain influenced this development
of legal doctrine would call alike for space and for talents not available
to this writer. At most we can attempt to deal with a few ways in which

50, Vitoria, op. cit. supra note 30, §3, par. 18

51. Shoshone Tribe v. United States, 299 U.S. 476, 497-498 (1937). This was a case
in which the Federal Government, after recognizing the claim of the Shoshone Tribe
to certain lands, placed other Indians on part of these lands. The Supreme Court
ultimately affirmed a judgment against the Federal Government in favor of the
Indians in the amount of $4408444.23 plus interest. United States v. Shoshone Tribe,
304 U.S. 111 (1938).

*47

THE INDIAN'S QUEST FOR JUSTICE

such influences operated, trusting that these operations will be found by
legal historians, upon further research, to be typical.

In the first place, we must recognize that our Indian law originated,
and can still be most clearly grasped, as a branch of international law,
and that in the field of international law the basic concepts of modern
doctrine were all hammered out by the Spanish theological jurists of the
sixteenth and seventeenth centuries, most notably by the author of the
lectures De India, Francisco de Vitoria. It was Vitoria that the Seventh
Pan-American Conference, on December 23, 1933* acclaimed as the man
who "established the foundations of modern international law." 52

While Vitoria himself is not directly cited in any of the early opinions
of the United States Supreme Court on Indian cases, these opinions fre-
quently refer to statements by Grotius and Vattel that are either copied
or adapted from the words of Vitoria. It is thus clear that the tradition
of legal teaching carried Vitoria's theories on Indian rights to the judges
and attorneys who formulated our legal doctrine in this field. They re-
mained free, of course, to reject Vitoria's theories, but they could not be
ignorant of the idea that Indian tribes were dependent nations, pos-
sessed of certain rights of sovereignty and property, yet requiring special
governmental protection. The history of American legal doctrine reveals
that no intellectually satisfying substitute for this basic theory of Indian
relations has ever been developed.

The influence of Spanish legal teaching upon the development of legal
thought in the United States was supplemented by the influence exerted
through official Spanish legal authority. Many of the early opinions of
the United States Supreme Court in Indian cases freely cite Spanish
decisions, statutes, and other authorities.53 In part, this is a result of the
theory that in international law the nationality of the source cited is of
no special consequence. In part, however, the use of Spanish authorities
is a result of the fact that most of the territory of the United States was
once under Spanish dominion. Under the accepted doctrine of inter-
national law that the law of the prior sovereign remains in force in ceded
territory until changed by the affirmative action of the new sovereign, all
sorts of questions involving Indians require for their decision an ex-
amination of Spanish legal authorities.

52. See also the brochure on the Spanish Origin of International Law (1928) by
James Brown Scott, former Solicitor for the Department of State and President of the
American Institute of Law, the American Society of International Law, and the Institut
de Droit International, which reaches the conclusion: ", . . in the lecture of Vitoria
on the Indians, and in his smaller tractate on War, we have before our very eyes,
and at hand, a summary of the modem law of nations."

53. Johnson v. Mclntosh, 8 Wheat. 543 (U.S. 1823); Mitchel v. United States, 7 Pet.
711 (U.S. 1835); Choteau v. Molony, 16 How. 203 (UJ5. 1853).

248

SPANISH ORIGIN OF INDIAN RIGHTS

Moreover, the relevance of Spanish law was formally recognized in
treaties by which the United States undertook to recognize property and
other rights enjoyed by the inhabitants of the ceded territory under the
prior sovereignty. In all Indian cases arising in former Spanish territory
it became relevant to inquire into the rights of Indians under the former
sovereign. But neither France, in the case of the Louisiana cession,54 nor
Mexico, in the case of the Mexican cession and the Gadsden Purchase,55
had made any important changes in the fabric of Spanish law in this
field. Thus, again, the trail of legal research in cases in the courts of the
United States led directly to Spanish authorities.

The Walapai case,56 to which reference has already been made, offers
a recent illustration of the connection between the law of Spain and that
of the United States. In that case eminent counsel employed by the rail-

54. The Treaty of April 30, 1803, for the cession of Louisiana, provided:

"Art. III. The inhabitants of the ceded territory shall be incorporated in the Union
of the United States, and admitted as soon as possible, according to the principles
of the Federal constitution, to the enjoyment of all the rights, advantages and immuni-
ties of citizens of the United States; and in the mean time they shall be maintained
and protected in the free enjoyment of their liberty, property, and the religion which
they profess."

"Art. VI. The United States promise to execute such treaties and articles as may
have been agreed between Spain and the tribes and nations of Indians, until, by
mutual consent of the United States and the said tribes or nations, other suitable
articles shall have been agreed upon."

55. Thus the Treaty of Guadalupe Hidalgo (Treaty of Feb. 2, 1848, 9 Stat. 922)
provided:

"Article VIII. Mexicans now established in territories previously belonging to
Mexico, and which remain for the future within the limits of the United States, as
defined by the present treaty, shall be free to continue where they now reside, or
to remove at any time to the Mexican republic, retaining the property which they
possess in the said territories, or disposing thereof, and removing the proceeds wher-
ever they please, without their being subjected, on this account, to any contribution,
tax, or charge whatever.

"Those who shall prefer to remain in the said territories, may either retain the
title and rights of Mexican citizens, or acquire those of citizens of the United
States. . . .

"In the said territories, property of every kind, now belonging to Mexicans not
established there, shall be inviolably respected."

"Article IX. Mexicans who, in the territories aforesaid, shall not preserve the char-
acter of citizens of the Mexican republic, conformably with what is stipulated in the
preceding article, shall be incorporated into the Union of the United States, and be
admitted at the proper time (to be judged of by the Congress of the United States) to
the enjoyment of all the rights of citizens of the United States, according to the princi-
ples of the constitution: and in the mean time shall be maintained and protected
in the free enjoyment of their liberty and property, and secured in the free exercise
of their religion without restriction."

56. 314 U.S. 339 (1941).

249

THE INDIAN'S QUEST FOR JUSTICE

road argued, and the courts below held, that although tribal occupancy
rights had long been respected in other parts of the United States, the
Walapai Tribe was located in the area of the Mexican Cession, and there-
fore, since Spanish law, it was argued, recognized no Indian right of oc-
cupancy, the Walapai Tribe came under the dominion of the United
States without any land rights whatsoever. The Solicitor of the Interior
Department, on the other hand, cited many passages from the writings
of Vitoria and from the Laws of the Indies to show that Spain recognized
tribal occupancy rights to the same extent as did the United States. In its
final decision the Supreme Court rejected as unsound the argument of
the railroad on Spanish law and held that Indians in former Spanish
territory were in as favorable a legal position, with respect to land rights,
as any other Indians in the United States, citing in support of this hold-
ing earlier cases which recognized the community of doctrine between
Spain and this country on the point.

Finally, one must recognize that throughout the formative period of
our Indian law the Indians themselves had a good deal to say about the
disposition of their territory. For a long time they outnumbered the
white immigrants, and while at first inferior in weapons they speedily
acquired and mastered the white man's firearms. Moreover, they knew
vastly more about their land and its agricultural 5T and military 58 uses

57. It has been estimated by competent authorities that four-sevenths of the total
agricultural production in the United States (in farm value) consists of plants do-
mesticated by Indians and taken over by whites, and it has been noted that where
the whites took over plants they also took over Indian methods of planting, irrigation,
cultivation, storage, and use. See Edwards, Agriculture of the American Indian
(U.S. Dept. of Agriculture, 1933) p. v; Bureau of American Ethnology Bulletin, i,
No. 30, 25.

58. In the case of Scott v. United States and Apache Indians, 33 Ct. Cl. 486 (1898),
the Court of Claims had to determine whether the destruction of certain property
by Apache Indians had occurred by reason of a state of war. In answering this
question in the affirmative, the court observed:

"The military forces engaged at the time of the surrender consisted, on the part
of the United States, of 42 companies of cavalry and infantry; on the part of our
ally, the Republic of Mexico, of 4,000 men; and on the part of the common enemy,
the Apaches, of not more than 50 men and a few women.

"... But the costly record of Geronimo is one which never can be questioned.
His campaign taxed the powers of two great civilized governments; it involved a
treaty which allowed the forces of the one to cross the frontier of the other; it
received the energy and experience and ability of our two greatest masters of Indian
warfare, General Crook and General Miles, The war was waged, on the part of the
United States at least, with the best military appliances of modern warfare, including
steam, electricity, and the heliostat; and, more valuable than any other element in
the military case, it was an instance of Apache against Apache, for our troops were

25O

SPANISH ORIGIN OF INDIAN RIGHTS

than did the newcomers. By throwing their weight to the British they
played a decisive role in wiping out the French Empire in North America.
Their attitude towards Spain was a matter of great concern to British and
American statesmen through the eighteenth and well into the nineteenth
century. Britain and, later, the United States were in a very real sense
competitors of Spain for Indian favor, and they could not hope to win
that favor if they offered less attractive terms. If the Indians could gain
security for their lands and respect for their tribal autonomy from Spain,
they were not likely to accept the protection of Britain or that of the
United States on less favorable terms. Thus, in the competition for ac-
ceptance, the doctrine of Indian rights first advanced by Vitoria had such
an appeal to the Indians that Britain and the United States both felt
compelled to accept it as a basis of bargaining. Later, of course, the pres-
sure of competition was removed, but then the respect for the sanctity
of the plighted word operated to prevent any wholesale repudiation of
those principles which had once been dictated by practical necessity.

So, in these various ways, by teaching, by legal authority, by treaty,
by the force of competition in the market-place of ideas, the doctrines
that had been developed by Spanish jurisprudence came to play a guiding
role in the development of the conception of Indian rights in the law
of the United States. Whether these ideas will play a still larger role
in the development of inter-racial and inter-cultural adjustments in the
future is one of the most important issues before our generation. It is
an issue on which the destiny of great as well as small nations is involved.
That the loyalty of native groups can be secured to the democratic cause
is proven by the full and generous aid that American Indians have ren-
dered to the Federal Government in a time of crisis. What distinguishes
the American Indians from other native groups is not an intrinsic ele-
ment of racial character, but the nature of their relationship with a gov-

led by Apache scouts, who faithfully and heroically served the Government. Yet
Geronimo armed his band with the best of modern breech-loaders and ammunition,
and even equipped them with field glasses taken from us, and drew his supplies from
wherever he would, and inflicted incalculable damage on the country of both of
his enemies, and carried on his last campaign successfully for five months. There is
not, probably, in the history or traditions or myths of the human race another in-
stance of such prolonged resistance against such tremendous odds.

"Moreover, the Indian soldier was successful even in the ending of his campaign;
for the surrender of this paltry band involved more prolonged negotiation than the
army of Burgoyne at Saratoga or of Lee at Appomattox, and concluded by the granting
of terms that the surrender be 'as prisoners of war to an army in the field' — terms
which effectually removed the sagacious savage and his followers beyond the juris-
diction of the civil authorities." (pp. 487-488).

251

THE INDIAN'S QUEST FOR JUSTICE

ernment which, while protecting their welfare and their rights, is com-
mitted to the principles of tribal self-government and the legal equality
of races.

In essence the situation in which Spanish juristic thought first operated
on this continent is not dissimilar to that which obtains today over a
large part of the world. Two factors now, as then, are involved: a native
population in possession of areas rich in natural resources but without
the techniques, or without the incentives, needed for the full develop-
ment of these resources, and, on the other hand, a population with the
desire and techniques to exploit these material resources. The problem
now, as then, is to preserve the rights and liberties of native groups while
permitting the fullest development of the world's resources. In seeking a
modus vivendi for racial groups of varying cultures, those who will build
a better postwar world can well afford to ponder the legal relationship
of American Indians to the Federal Government, which, after three cen-
turies of experience and experimentation, often bitter, conforms more
closely today than ever before to the humane legal ideals first formulated
by the theological jurisprudence of sixteenth century Spain.

252

Indians Are Citizens!

Why, 20 years after the last non-citizen Indian was endowed with citizen-
ship by act of Congress, do so many well-meaning people think that In-
dians are not citizens?

1 suppose that this very widespread misimpression is a natural product
of the fact that Indians are frequently not permitted to spend their own
money as they please, that they frequently hold lands which are exempt
from state property taxes, that on their own reservations they are gen-
erally subject to tribal customs and ordinances rather than to state crimi-
nal laws, and that they receive various services from the Federal Govern-
ment, services which, in our prevailing scheme of values — at least in the
scheme of values that prevailed until recent years — are signs of inferior
status. Now the fact is that all these legal peculiarities which we are so
prone to consider marks of inferiority are either special rights which
Indians have secured for themselves by contract, treaty, or statute or are
incidental appendages to such special rights. Specifically, the right to
hold ancestral lands free of state taxes is a right which was solemnly
promised to the Indians by the United States in countless treaties and
statutes. In exchange for this promise valuable lands were ceded to the
Federal Government. This promise was expressly ratified by practically
all of the states which are affected by it. This right of tax exemption,
the Supreme Court has said, is a valuable property right of which the
Indians may not be deprived without their consent. Similarly, the right
to local self-government and the correlative right to be free from the
obligation of state laws while on their own reservations are rights upon
which most Indian tribes have insisted and which have been solemnly
guaranteed to them in statute and treaty, parts of an original sovereignty
which they have not surrendered and which Congress has never pre-
sumed to abrogate.

Even the laws which prohibit the sale of liquor to Indians must be
viewed historically as a concession made by the Federal Government in
response to solemn representations made by various Indian tribes asking

Published in The American Indian, 1944.

253

THE INDIAN'S QUEST FOR JUSTICE

for the assistance of the Federal Government in curbing a liquor traffic
which the Indians did not create, did not want, and could not control.
Our first Indian liquor law was enacted in 1805, in response to an Indian
petition to what the Indians called "The Great Council of the Sixteen
Fires/' which has now become "The Great Council of the 48 Fires." If
the time has come, as many think, when Indians no longer want or need
this special protection and view it rather as a discriminatory imposition,
then I have little doubt that Congress, with the cooperation of the Inte-
rior Department, will proceed to repeal or radically modify the existing
Indian liquor laws.*

Even such a matter as the disability of the Indian to dispose of re-
stricted land or funds without the consent of some Government official,
when viewed in its proper historical perspective, is seen to be an inevita-
ble incident of Indian rights resulting from solemn promises of the
Federal Government. If the Federal Government has promised to protect
Indian ownership of certain property, it must inevitably scrutinize the
various transactions by which the Indian might be separated from this
property. What is not always remembered is that this special protection
is fundamentally a matter of agreement with the Indians concerned.
It does not follow from the color of their skin or the quality of their
blood. The Indian who earns his own living as a carpenter does not
need to ask any one's permission to spend his wages as he pleases. On
the other hand if an Indian receives a special payment from the Govern-
ment because he is a member of a tribe which has rights under a treaty
with the Government, it seems to me perfectly proper and perfectly com-
patible with the Indian's citizenship for the Congress that makes this
appropriation to require that it be spent in a way that will benefit future
generations of the tribe in question.

I do not mean to suggest that all that the Federal Government does in
the guise of protecting Indian property is justified. I do not think that
is the case. Management may verge imperceptibly into spoliation. And
I think that often we underestimate the cost of a protection that is not
wanted, and that the Indian Service and the Indians might be better
off if our protection of Indian property were radically curtailed, limited,
perhaps, to the Indians' capital assets, leaving all Indians free to spend
the sustained income from such assets as they pleased. But the important
point seems to me to be that all the peculiar legal relationships that
seem to encumber the Indian are in the final analysis really obligations

* [Ed. note: Repeal of the discriminatory features of the Indian liquor laws for
which the author fought for many years came with the Act of August 15, 1953, 67
Stat. 586.]

254

INDIANS ARE CITIZENS!

of the Federal Government to the Indian which only the Indian himself
can waive. To the great majority of Indians today these special rights
and privileges are of high value.

The misconception that the peculiar position of the Indian is a posi-
tion of inferiority, of second-grade or incomplete citizenship, offers a
serious threat to Indian well-being. For one thing, the aid that friends
of the Indian can render in the protection of Indian rights is under-
mined as soon as we concede that Indians are not entitled to all the rights
of any other citizens. But even more serious is the fact that this popular
misconception provides a platform on which those who wish to do good
to the Indians but do not know how to do it support those who wish to
separate the Indians from their property and realize that this can be
accomplished only by giving a bad name to the mechanisms which are
now available to protect the Indian. If the would-be grafters and de-
spoilers of Indian wealth can give the Indian Bureau, and the institution
of restricted property, and the institution of tax exemption, a bad enough
name, by stressing the alleged incompatibility of these institutions with
full citizenship, then they can claim a high moral purpose in stripping
the Indian of the protections which the law affords him and in despoil-
ing him of the property which the law now protects. And all history
shows that plunder, to be successful on a large scale, must be able to point
to a high moral motivation.

Perhaps I can put my point another way by saying that the peculiar
legal status of the Indian is not a matter of race or birth but is a matter
of contract or consent. The special rights of the Indians are like the
rights of other groups that have special claims upon the Federal Gov-
ernment, for example, homesteaders, or veterans, or holders of federal
securities, or government employees, or government contractors. Each
of these groups has special rights, because of services performed, and
incidental to these special rights are certain special disabilities. A home-
steader may not alienate his homestead. A government employee may
not prosecute claims against the government, which is the right of any
other citizen. A government contractor may not hire and fire as he pleases
or work his employees more than a certain number of hours. These dis-
abilities are not forms of discrimination against oppressed groups, but
simply necessary safeguards incidental to the process of securing special
benefits or payments from the Federal Government. By and large, it
must be remembered, whatever we have given to the Indians and what-
ever we give them today is not a matter of charity, but is a part of a series
of real estate transactions through which about 90 per cent of the land
of the United States was purchased from the Indians by the Federal Gov-

255

THE INDIAN'S QUEST FOR JUSTICE

ernment. Failure to appreciate this fact leads to all sorts of ludicrous
and unjust results. For example, the fact that Indians generally stipulated
that payments for land cessions should be made in the form of goods and
services came to be pushed rapidly into the background of public opinion,
with the result that well-meaning blunderers rose to denounce the ren-
dering of such services and goods as degrading and encouraging idleness,
and persuaded Congress to pass a law prohibiting the distribution of
rations to able-bodied Indians unless they performed services in exchange.
Imagine the howl of anguish that would have gone up if Congress had
determined that payment of government bonds to their holders encour-
aged idleness and should not be effectuated with respect to able-bodied
bondholders except upon performance of equivalent services. This is
a typical example of the double standard which is engendered by a sense
of race superiority and an ignorance of history.

I know of no federal law which discriminates against anybody because
he is of Indian blood. The peculiar status of the Indian today under
federal law is not a diminution of full citizenship but an addition to full
citizenship. The peculiar incidents of Indianhood are, by and large, privi-
leges which the Indian can reject rather than disabilities imposed upon
him without his consent.

Where the incidental burdens that go with special rights come to out-
weigh the rights themselves in significance, the individual Indian can
reject the entire complex of special legal relationships. He can for all
legal purposes cease to be an Indian whenever he wants to do so. He can
do this most simply by giving up his tribal membership. This was decided
as long ago as 1879 in the case of United States ex rel. Standing Bear v.
Crook. In that case the Interior Department and the Army tried to
compel a band of Ponca Indians, led by Chief Standing Bear, to remain
on a reservation assigned to that band in the Indian Territory. The
Indians left the reservation en masse, declaring that they would no longer
accept the status of tribal Indians, and when the Army, under General
Crook, attempted to return them to the reservation assigned them, they
secured in the Federal courts a writ of habeas corpus against General
Crook. In that case Judge Dundy pointed out that Congress had de-
clared the right of expatriation to be "a natural and inherent right of
all people, indispensable to the enjoyment of the rights of life, liberty,
and the pursuit of happiness" and that members of an Indian tribe
were as clearly entitled to expatriate themselves from their tribal alle-
giance as were immigrants from any foreign land who sought to renounce
their former allegiance. Once an Indian has severed his tribal relations
he no longer comes within the scope of the Federal power to regulate

256

INDIANS ARE CITIZENS!

commerce and make treaties with Indian tribes, and therefore, I think,
does not fall within any authority which has been conferred upon ad-
ministrative agencies of the Federal Government pursuant to those con-
stitutional powers.

The subject of the special position of the Indian in our federal law is
a complex one, upon which books might be written, and undoubtedly I
have over-simplified the situation in my observations thus far. But I
think I have said enough to indicate the unhistorical character of the
popular idea that Indians are less than full citizens and the way in which
this idea emerges from a failure to recognize that the special status of the
Indian is, by and large, something that he has bought and paid for and
that he can relinquish whenever he chooses to do so.

This brings us to the second problem:

What can be done to safeguard Indians in the exercise of their rights?

If Indians are, by and large, as I think, an underprivileged minority
group, a group against which many illegal or extralegal forms of oppres-
sion and discrimination are practiced, then the problem of protecting the
legal rights of Indians is not a purely individual problem. Rather, it is
a problem which affects Indians as a group and therefore profoundly
affects the rest of society, for while racial oppression has seldom destroyed
the people that was oppressed, it has always in the end destroyed the
oppressor. The rights of each of us in a democracy can be no stronger
than the rights of our weakest minority. "Even as ye do unto the least of
these, so ye do unto me/' When John Collier, years ago, brought these
words of the great Representative of oppressed people everywhere to bear
upon our Indian question, the entire problem was illumined with a
pregnant insight. Only as we appreciate the fact that in protecting Indian
rights we are protecting ourselves, our democracy, and the rights of our
own children, only as we recognize these truths, can we free our work
on behalf of Indian rights from the taint of benevolent superiority which
has so often made "charity" an odious and shameful word to its recipients.
Only in so far as we realize that the struggle for Indian rights is simply
one sector in a worldwide struggle for human rights, can we see our own
efforts in proper perspective. Now, if we are to wage an effective struggle
for the protection of Indian rights, the first thing we have to do is to
know what the rights are that need protection. Without attempting to
enumerate such rights I should like to suggest that by and large the rights
that are important to Indians are not rights of citizenship, that is to say,
rights accorded to all citizens and denied to non-citizens, but are either
human rights or tribal rights.

In the first place, there are certain human rights guaranteed to all per-

THE INDIAN'S QUEST FOR JUSTICE

sons in the United States, whether or not they are citizens— the right to
be free from involuntary servitude, the right to be free from unreasonable
restraints on person or property imposed without due process of law, the
right to worship in accordance with one's conscience, and all the other
rights which are set forth in the Bill of Rights of our Federal Constitu-
tion and in the Bills of Rights of our various states.

Among the rights which all persons in the United States have, whether
or not they are citizens, is the general right to the equal protection of
the laws. In part, this right is protected by the Fourteenth and Fifteenth
Amendments to the Constitution. In my opinion, the actions of the states
of New Mexico and Arizona in denying Indians within these states the
right to vote is a clear violation of the Federal Constitution. I hope that
one or another of the organizations interested in Indian affairs will help
the Indians affected by this discrimination to undertake the necessary
legal action to put an end to it.* Other forms of official and unofficial
discrimination against Indians exist in many states. In recent years the
Interior Department has been increasingly successful in persuading var-
ious state governments to stop various forms of official discrimination, in
voting, in the distribution of social security benefits, and in many other
matters, but there is still much work to be done on these lines. However
much the Indian Bureau may do for the protection of these human rights
— and even if it were not necessary sometimes to protect the Indian from
the Indian Bureau— this task is one that can never be fully carried out
by any government agency .f That is why the private organizations which
have devoted themselves to the performance of that task deserve the
gratitude of all true Americans.

Apart from the general human rights in which Indians, like all other
minority groups, need legal aid and help in the enlightening of public
opinion, there is a second field in which the Indians need protection.
This is the field of special rights that Indians have as members of tribes.
Indians who are members of recognized tribes have certain rights of self-
government, frequently rights of communal land ownership, often rights
under special treaties or agreements made between their tribe and the
Federal Government, or under tribal constitutions and charters which
have been approved by the Federal Government. Most Indian groups

* [Ed. note: Discrimination against these Indians in the exercise of their franchise
was ended as a result of Felix Cohen's efforts as General Counsel of the Association
on American Indian Affairs. See Ed. note at the end of Note 3, p. 233 and see also
below, pp. 328-30,]

f [Ed. note: As a private attorney and General Counsel of the Association on Ameri-
can Indian Affairs, Felix Cohen later contributed toward the recognition of Indian
rights with regard to social security and other matters. See below, pp. 330-331.]

258

INDIANS ARE CITIZENS!

that I know are desperately in need of advice and protection in the main-
tenance of these rights. Ignorance of the nature of these rights is so
widespread and so deep that the burden of assistance in these matters
must inevitably fall on the few individuals and agencies that have a
special knowledge of these problems.

I should not want to leave the impression that I think of law as an
end in itself. The legal position of the Indian, if it is to be viewed intel-
ligently, I think, must be viewed as part of a much broader problem, what
the anthropologists call "the problem of acculturation." From the stand-
point of ethics, the problem of acculturation is how we can make available
to the Indians the highest fruits of our culture and how the Indians can
make available to us the best things of their own culture. The process is
not a process of one person melting down another and making something
else out of him, but a two-way process, a process of give and take. It is
not a process in which white people have benevolently bestowed upon
the Indians the best of white civilization, taking nothing in exchange. On
the whole, I think, it is the Indians who have done most of the giving
and the whites who have done most of the taking. In a field that we can
measure in dollars and cents, we know that more than half of our agricul-
tural produce, in value, consists of the creations of Indian agriculture.1
In some other less tangible fields the extent of the Indian contribution to
our American life is even higher.

Now, if we apply the concepts of assimilation and acculturation to the
legal field, what do we find? We find, I think, that the one-way assimila-
tionists have always been concerned to abolish whatever is peculiar about
the legal position of the Indians. I have already commented on the dis-
astrous consequences that would attend the success of that effort. Just as
racial conceit has been responsible for the effort to reduce all immigrants
to a mass-production uniform American type, through the use of a melt-
ing pot designed to liquidate the distinctive cultural qualities of every
immigrant group, just as this ideal has been applied to wipe out Indian
arts and crafts and other vital and colorful Indian traditions, so a similar
racial conceit has obtained in the field of law. We have too long accepted
the view of American lawyers that the law of the United States is the
"true embodiment of everything that's excellent," from which it seems to
follow that if we apply this law to Indians, wiping out all peculiarities of
tribal law and custom in the process, we will have conferred a priceless
boon upon the Indian. If we can rise above our racial and national con-
ceit and look at the matter objectively or scientifically, I think we shall

i. See Edwards, Agriculture of The American Indian (U.S. Dept. of Agriculture,
Library No. 23, sd ed., 1933), p. 5.

259

THE INDIAN'S QUEST FOR JUSTICE

find that in many respects the legal institutions of Indian life are superior
to those of their white neighbors. Compare, for instance, the criminal
code of any state of the Union with the criminal code of any Indian tribe.
In the state code you will find thousands upon thousands of criminal
laws, so many that not more than i/ioooth of i% of the population of
any state in the Union could possibly have read all the criminal laws of
that state. Among these laws you will generally find barbarous provisions
involving prison terms of 10 to 20 years for trivial offenses. You will find
laws so vaguely worded that none of us could go through a day without
violating them. In contrast, you will generally find in the criminal code
of any Indian tribe a document that any one can read, and that many
Indians do read, in the space of half an hour, with clear and simple
definitions of offenses and with a very humane scale of punishments. The
contrast is so striking that when the War Relocation Authority two years
ago searched about for a model code of law and order to regulate con-
duct in Japanese-American communities, the WRA officials and the Jap-
anese-Americans joined in choosing an Indian tribal code, rather than a
state code, as a model from which to start.

Again, in dealing with our problem of rural land tenure in the United
States, I think we shall make much greater progress if, instead of seeking
to impose the worship of the fee simple absolute upon the Indians we
adapt to white use some of the basic principles of Indian land tenure. We
know that the worship of the fee simple absolute has in the space of two
generations, according to the President's Committee on Farm Tenancy,
raised the percentage of tenant farmers in South Dakota from 4.4% in
1880 to 48.6% in 1935, and in many western states the equity of operating
farmers in their lands has become little more than %th, nearly %ths of
the value of their lands having come into the hands of landlords and
mortgage holders. Those Indians who have been most successful in keep-
ing their lands and in making the highest productive use of them are
precisely those Indians who have retained ancient forms of land tenure
that have been tried and tested in centuries of experience on American
soil.

Let me pose this problem of one-way assimilation versus two-way ac-
culturation in more concrete terms. Twenty years ago, when the drive to
assimilate the Indian to the legal position of non-Indians was at its
height, what were the specific things that made Indians peculiar, and
therefore supposedly inferior, in the eyes of their white neighbors?

First, I suppose, was the fact that Indians frequently received supplies
of food or other forms of relief from the government in their old age. In
the second place, Indians sometimes received free health services from

260

INDIANS ARE CITIZENS!

the government, which were not available to nonJndians. In the third
place, they received special government protection against the loss of
their lands. In the fourth place, they had access to government credit
facilities, which were denied to their white neighbors. In the fifth place,
they had a corps of government employees available to render them spe-
cial guidance in farming and in other vocational efforts, or, as critics of
the system prefer to put it, a bureaucracy established to impair their posi-
tion as free and self-reliant Americans. I think it fortunate that the
assimilationists did not succeed in wiping out all these peculiarities. For
the fact is that in the last 20 years the processes of acculturation have
worked the other way. Each of these Indian peculiarities has been ex-
tended to the Indians' neighbors. Non-Indians today, as well as Indians,
receive food supplies or other forms of public assistance in their old age,
receive an increasing measure of free health services from the government,
have access to expanding sources of government credit. An increasing
number of white Americans have obtained land, or security on land they
already own, from the operations of the Federal Government under the
Bankhead-Jones Act, the Home Owners Loan Corporation Act, the Farm
Credit Administration Act, and other laws of that type, or from liberalized
state homestead laws. Even the vast bureaucracy, or whatever it is that
public servants are called by the critics of any administration, has been
extended to the rest of our population. I think that, on the whole, Amer-
ican life is richer and more secure today because, instead of wiping out
the federal services that were once peculiar to Indians, we have extended
them to the rest of our population.

Across the span of our national history this problem of assimilation
and acculturation is not a new one. For many decades whites regarded
the peculiar Indian custom of burning certain weeds and inhaling the
smoke with peculiar horror, even as a proof of the depths to which wor-
ship of the devil had degraded the native inhabitants of this land. But
eventually the rest of the world revised its judgment and adopted the
Indian's tobacco, pipe, cigars, and cigarettes.2 So it has been with many
other peculiarities of Indian life. Only dire starvation compelled the
white colonists to accept that great contribution of the Indian to the
world's food supply, Indian corn, and all that goes with its culture, in-
cluding the planting of pumpkins in corn fields, the munching of pop-
corn, and breakfasts of flapjacks and maple syrup north of the Rio Grande

2. For references to various prohibitions and denunciations against the use of
tobacco by high medical, political, and spiritual authorities, including Pope Innocent
X, King James I, and Jahangir, Mogul Emperor of Hindustan, see Arturo Castiglioni,
"The Introduction of Tobacco in Europe," Ciba Symposia, 4 (1943), 1436.

261

THE INDIAN'S QUEST FOR JUSTICE

and tortillas south. Opposition to the potato persisted in Europe for more
than two centuries, during which time it was argued by physicians,
agronomists, and theologians that the potato (a) was poisonous, (b) was
the cause of many diseases, (c) permanently destroyed the fertility of the
soil in which it grew, and (d) was not mentioned in the Bible. This op-
position was broken down only by such extreme measures as the royal
threat to chop off the ears and noses of Prussians who refused to plant
and eat potatoes, the organization of a corps of "Potato Missionaries" in
other parts of Germany, and the more subtle French method of Louis
XVI and Parmentier of growing large fields of potatoes in public places
and strictly forbidding passers-by to take or taste this forbidden fruit.3
Only 70 years ago most white authorities considered the tomato to be
poisonous to human beings and this was one more evidence that the
Indians who had created this noblest of vegetables were mentally queer.
Seventy years ago, most white people thought that the Indian custom of
exposing large amounts of the human epidermis to the sun's rays was
either unhealthful or downright sinful. And many medicines which the
Indian medicine men had discovered or invented — witch hazel, cascara
sagrada, oil of wintergreen (of which aspirin is a derivative), cocaine,
quinine, and the rest — had to meet suspicion and hostility before they
won professional and public acceptance.4

I mention these things merely as instances of the widespread and deep-
rooted human attitude that regards the strange and unfamiliar as nec-
essarily inferior to the accepted and commonplace. My plea is that we
who are the heirs of all the world's civilizations and cultures should rise
above this weakness and, instead of trying to remake all Indians in our
own image, that we seek to guarantee to the Indian in practice the realm
of freedom which is his under the law. That realm of freedom will in-
clude perhaps, practices and institutions which some of us may despise;
but let us not forget that many of the qualities of Indian life which were
once despised have contributed to the richness of our American life to-
day. It is because we as a nation have been tolerant of many differences,
many races, and many ways of life, that we have been able to develop
the strongest, the wealthiest, and the freest nation on the face of the
earth. In England the Lord Chancellor is the keeper of the King's con-
science; in this democracy of ours where the people is King, the King's
conscience is kept by men and women who dare to be critical of wrongs

3. See W. E. Safford, "The Potato of Romance and Reality/' Journal of Heredity,
16 (1925). 113* !75» 217, 319-23.

4. See E. E. Edwards, American Indian Contributions to Civilization (U.S. Dept. of
Agric., 1934), p. 8.

262

INDIANS ARE CITIZENS!

in high places. Theirs is the sacred trust of reminding the King, in the
days of his strength and power, of the obligations he owes to the weakest
of his subjects, that we may not succumb to the poisons of pride and
intolerance which have destroyed powerful states and mighty kings be-
fore us.

263

Indian Claims

A CERTAIN rich man was enjoying a banquet. As he sat at the groaning
table he could see outside the window, at the door of his home, an old
woman, half starved, weeping. His heart was touched with pity. He called
a servant to him and said: "That old woman out there is breaking my
heart. Go out and chase her away.'*

Something of the same attitude has characterized our attitude towards
the Indians on our national doorstep. Where we have not physically
called on our public servants to chase them away from the doorstep, we
have often disposed of them spiritually by denying their existence as a
people, or by taking refuge in the Myth of the Vanishing Indian, or by
blaming our grandfathers for the wrongs that we commit. In this way
we have often assured ourselves that our national sins were of purely
antiquarian significance. Just a few weeks ago the Supreme Court did
this in the Northwestern Shoshone case. After denouncing the injustices
done to a little band of Shoshone Indians, it denied them the right to
recover for these injustices under a special jurisdictional act passed by
Congress in 1929. And chief among the reasons advanced by the Justices
in defending a decision that shocked the national conscience * was the
myth that whatever wrongs had been committed against these Indians
were ancient wrongs committed by our forefathers in the distant past
against remote ancestors of the present claimants.

The fact of the matter, in this particular case, was that the wrongs com-

i. Following the decision of the Supreme Court on March 12, 1945, requests for
a rehearing of the case were filed by the Senate and House Committees on Indian
Affairs, the Attorney General of the State of Utah, the Attorney General of the State
of Idaho, Judge Manley O. Hudson of the Permanent Court of International Justice,
the Department of the Interior, the National Congress of American Indians, and the
American Civil Liberties Union. Editorial comment on the opinion, uniformly un-
favorable, appeared in many periodicals throughout the country. The request for
rehearing was denied without opinion. The original opinion of the Court was a 5 to
4 decision from which Justices Roberts, Frankfurter, Douglas, and Murphy dissented.

Published in The American Indian, 1945.

264

INDIAN CLAIMS

plained of began, so far as the evidence in the record showed, about 1907
and are still being committed. What our forefathers did in 1863 and 1865
was the only fair and decent thing that the record in the case showed: that
was to deal with these Indians as we deal with other human beings, rec-
ognizing their land claims and paying them for right-of-way that we
needed and that they were willing to cede.

The Myth of Moral Progress, which enables us to attribute our current
exploitations to our forefathers while continuing to draw a profit there-
from, the Myth of the Vanishing Indian (actually the Indians are today
the most rapidly increasing part of our population), and the Myth of
Indian Nomadism, have all combined in the case of the Northwestern
Shoshones, as in many other situations, to obscure the realities of a prob-
lem which has a very serious contemporary relevance.

Indian claims are, by and large, the backwash of a great national ex-
periment in dictatorship and racial extermination. This episode in our
national history reached its florescence in the period from the close of
the Civil War to the First World War. It is the wrongs committed or at
least initiated by our public servants in that period that give rise to most
of the claims that we are trying to redress today. I think that the attitude
which gave rise to these claims is pretty well expressed by General Francis
A. Walker, the noted statistician and economist, who was appointed Com-
missioner of Indian Affairs in 1871 by General Grant, presumably in
order to provide a salary for him while he continued to work on the 1870
census after Congress had refused to continue appropriations for his
salary in conducting that census. Commissioner Walker declared: "There
is no question of national dignity, be it remembered, involved in the
treatment of savages by a civilized power. With wild men as with wild
beasts the question whether in a given situation one shall fight, coax, or
run is a question merely of what is easiest and safest."

These views are developed with particular vehemence in the 1890 cen-
sus, which includes a special report on Indians and uses a good deal of
pseudo-scientific racist lingo to justify the policy of exterminating the
Indian race, the kind of language that has become familiar to any of us
who have read Nazi racist literature in recent years. The Indians, we are
solemnly told by the 1890 census, are "the embodiment of cruelty." They
also have an "insatiable greed for money." The Indians "as a class are
egotists." They are also "pigeon-toed." They are born to a peculiar and
irrational sort of logic. The evidence of this peculiar logic, incidentally,
is very instructive. According to the 1890 census report an Indian chief
by the name of Wabasha was holding a scalp dance and was reproached
by Bishop Whipple. The Indian Chief commented:

265

THE INDIAN'S QUEST FOR JUSTICE

White man go to war with his own brother in the same country;
kill more men than Wabasha can count in all his life. Great Spirit
smiles; says, "Good white man; he has my book; I love him very
much; I have a good place for him by and by." The Indian is a wild
man; he has no Great Spirit book; he kills one man; has a scalp
dance; Great Spirit is mad, and says, ''Bad Indian; I will put him in
a bad place by and by." Wabasha don't believe it.

That, according to the compilers of the 1890 census, proves that the In-
dians are not rational.

The conclusion of this pseudo-scientific nonsense, as embalmed in the
1890 census, is given in these words: "Such has been his life, such the
result, that if the entire remaining Indians were instantly and completely
wiped from the face of the earth, they would leave no monuments, no
buildings, no written language save one, no literature, no inventions,
nothing in the arts or sciences, and absolutely nothing for the benefit of
mankind." (p. 57)

Fortunately the views of practical administrators like General Walker
did not carry very much weight with Congress or the Courts, and the
result has been that while a large part of our Indian population and a
larger part of our Indian property and culture disappeared in the closing
decades of the igth Century, the body of Indian rights written into our
basic law survived to serve as a rallying ground for a great rebirth of In-
dian life in our own days. And I should like to emphasize the fact that
the problem of Indian claims cannot be understood at all if we look
only at the wrongs that have been committed against Indians. Wrongs
never create rights. It is only because at the same time that we committed
these wrongs we recognized and affirmed a higher standard of dealing
than we followed that we have a problem of Indian claims today.

Let me trace, then, in brief outline the background of rights and
wrongs against which the problem of Indian claims must be viewed.

NATIVE PROPERTY CONCEPTS

The first point to note in tracing the background of the Indian claims
problem is that long before any white man landed on these shores the
Indians were making use of the resources of the entire country, within
the limits of a Stone Age technology. The country was pretty well carved
up into areas exclusively claimed by the various Indian Tribes. There
may have been some areas only occasionally or sporadically occupied,
and there must have been boundary disputes, as there are today among

.266

INDIAN CLAIMS

civilized nations, but on the whole each Indian group knew its own
territory and the life of each of its members depended upon an exact
knowledge of the boundaries and resources of a particular area. Some
years ago I had occasion to investigate the aboriginal boundaries of the
Walapai Indians. After getting the best information I could from the
older Walapai Indians themselves, I undertook to check this with rep-
resentatives of all their traditional enemies, the Paiute, Mohave, Yavapai
and various others. In substantially every case I found precise agreement
as to the location of these aboriginal boundary lines. Where an old
Walapai Indian told me that in his childhood his uncle had told him
that if he crossed a certain creek he would be killed by the Yavapai In-
dians I would obtain from an old Yavapai Indian, who was quite un-
familiar with my Walapai testimony, a statement that some ancestor of
his had taken him to the same creek in his childhood and told him that
if he crossed to the other side it would be very dangerous for him because
the Walapai would probably kill him.

Now it is true that in many parts of the country Indians had to do a
good deal of traveling to wrest a living out of an unfriendly environ-
ment. And white travelers, using Indian trails and meeting Indians on
these trails, long ago developed the Myth of the Nomadic Homeless In-
dian, which is commonly accepted as a fact even by judges who are
trained in the difficult art of reserving judgment in the absence of evi-
dence, outside the field of anthropology. Thus in the recent Northwestern
Shoshone case, two of the most progressive judges of the Supreme Court,
both Easterners, held that certain Shoshone Indians could not possibly
have "owned" the lands referred to as theirs in a treaty because a few
hundred Indians were "roaming" over millions of acres. When I checked
the actual figures on this I found that the number of white people who
now make their living in the area defined by the treaty is somewhat less
than the number of Indians who once subsisted within its limits, and
that the predominant use of this land made today by the white populace
is for seasonal grazing of approximately six months' duration or less.
What this means is that there are parts of our country, particularly in
the western mountain states, which are not suitable for year-round living
because the higher reaches are covered with deep snow in the winter
months and the lower areas are arid in the summer months. Effective use
of these areas must therefore be seasonal. That does not mean that In-
dians did not have well recognized homes and villages for the different
seasons of the year. It does not mean that they had no property rights.
As one aged Havasupai Indian once explained to me, he had a winter
home and a summer home "all same rich white man."

267

THE INDIAN'S QUEST FOR JUSTICE

Of course primitive concepts of real property cannot be equated with
some of the forms of land ownership that we have in modern industrial
society, but the basic idea of exclusive possession was an idea that had
been thoroughly developed in the Indian cultures, and Father Cooper of
Catholic University has prepared a very interesting map showing the dif-
ferent forms of land tenure prevailing in different parts of North America
and tracing the relationships between the forms of land tenure and the
types of economy, hunting, fishing, and agriculture, in which they appear.
This, then, was the background on which the story of white land acquisi-
tion must be told.

WHITE RECOGNITION OF INDIAN TITLES

Notwithstanding the popular myth that our forefathers ruthlessly dis-
possessed the Indian and refused to recognize his prior rights to the lands
of North America, the fact is that through most of North America and
particularly throughout the continental United States, the validity of
aboriginal titles has been pretty consistently recognized since 1532. This
is a rather remarkable fact in the history of contacts between races, and
but for this fact we would have no problem of Indian claims. We have
no problem of Negro claims although the Negroes of this country have
probably suffered in a measure far exceeding any wrongs ever inflicted
on our Indian population. There is no problem of Negro claims for the
uncompensated labors of two and one-half centuries of slavery, because
the Negroes had no legal rights during the period of slavery. The fact that
there is an Indian claims problem today, while it points to the fact that
wrongs and injuries have been committed against Indians, points also to
the equally important fact that Indians have always occupied a high and
protected position in the law of the land.

This circumstance we owe largely to the vision of a great Spanish theo-
logian, Francisco de Vitoria, a professor of moral theology at the Univer-
sity of Salamanca, who, in the year 1532, was asked to advise the King
of Spain on the nature of that sovereign's rights in the New World.
Braving the risk of royal displeasure and the certainty of offending all
the robber barons who were pillaging the New World, this university
professor advanced the view that discovery of the Indians by the Spaniards
did not give the Spaniards any right to enslave the Indians or confiscate
their possessions any more than did the discovery of the Spaniards by
the Indians give reciprocal rights of confiscation and enslavement to the
Indians. Nor, Professor Vitoria held, did the religion or lack of religion
of the Indians have any bearing upon their right to their lands or their

268

INDIAN CLAIMS

liberty. These were things which belonged to human beings as human
beings, not by virtue of their religious adherence or political allegiance.
These views of Vitoria, advanced as a guide to relations between Catholic
Spaniards and pagan Indians, were equally applicable to relations with
Mohammedan Arabs or Protestant Hollanders and, picked up and am-
plified by Grotius and Vattel, the ideas expressed in Vitoria's opinion on
Indian affairs became the basis of modern international law. The high
principles thus laid down have, of course, often been violated by Span-
iards and by those who came after in the settlement of North America,
but on the whole these principles have showed a remarkable vitality.2

Perhaps it is only fair to say that the vitality of these principles re-
flected the courage and love of freedom of our native population. The
Indians of this country never accepted any relationship with any white
man's government that did not recognize their right to their freedom and
their land. It has been estimated that in the last years of our Indian wars
it cost the United States on an average four million dollars to kill an
Indian.3 It was cheaper to deal in friendly fashion with Indians for the
purpose of acquiring such lands as the white man needed and as the
Indians were willing to sell when the acquisition of white technologies
made it possible for them to wrest a living from a smaller area.

The process of white land acquisition is one that has been largely
misunderstood and misrepresented. I should be the last to deny that
wrongs have been committed in the course of this acquisition of our
public domain. But the fact remains that of all the public domain ac-
quired by the United States, approximately 95% was purchased through
formal treaty or agreement with Indian tribes and only 5% was acquired
in other ways. I have no exact figures on the total amounts paid, but my
best guess would be that the sum runs somewhere between 500 million
and i billion dollars. Certainly we drove some shrewd Yankee bargains,
but on the whole the Indians did rather better than Napoleon or the
Czar of Russia or the Republic of Mexico in their land transactions with
the United States.

LEGAL INJURIES

The purchase of the land of the United States from the Indians was,
I suppose, the largest real estate deal recorded in the history of the world.

2. See F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United
States" [above, p. 230].

3. Cf. opinion of Chief Judge Nott of the Court of Claims in Scott v. United States
and Apache Indians, 33 Ct. Cls. 486 (1898).

269

THE INDIAN'S QUEST FOR JUSTICE

It would be miraculous if such a series of land transactions, stretching out
over more than a century and a half and involving an expenditure of
several hundred million dollars did not develop the same sort of mis-
understandings and legal difficulties that would be developed in com-
parable transactions among white men. Mistakes were made in tracing
boundaries. We sometimes bought land from a tribe that did not own
it and overlooked the tribe that had a better right. Sometimes our agents
were faithless to their trust, and the representatives of the Indian tribes
faithless to theirs. Other times the money that was to be given to the In-
dians in the form of merchandise and services was diverted to other
unauthorized purposes. Or, we promised to pay the Indians for the land
they sold us if, as, and when we received payments from individual home-
steaders, and then the homesteaders never came or we put the land into
national parks so that neither we nor the Indians could collect any home-
stead fees.

If any of these difficulties arose in the course of land transactions be-
tween private citizens, resort to the courts would be the natural channel
of redress. The United States, however, as a sovereign, is exempt from
suit except in so far as it permits injured parties to bring suit. And this
is where the difficulties begin in our problem of Indian claims. On
March 3, 1863, Congress enacted a statute which declares that the jurisdic-
tion of the Court of Claims, which is the court that ordinarily handles
claims against the United States, "shall not extend to any claim against
the Government not pending therein on December i, 1862, growing out
of, or dependent on, any treaty stipulation entered into with foreign na-
tions or with the Indian tribes." Whatever justification there may have
been for discriminating against the contracts we had made with the
original owners of the country in giving the Court of Claims general
jurisdiction over contract claims against the government, the effect of
this discrimination has been to inject gross delays into our judicial settle-
ments of treaty claims.

PRESENT CLAIMS PROCEDURES

For many years Congress has been enacting special statutes allowing par-
ticular Indian tribes to bring suit in the Court of Claims for injuries
arising under various treaties and agreements. As of February, 1940, Con-
gress had passed special jurisdictional acts under which approximately
175 cases have already been litigated or are in the course of litigation.
Out of approximately 100 that went to judgment, 26 resulted in Indian
recoveries, and these recoveries amounted to slightly more than $30,-

270

INDIAN CLAIMS

000,000. Since 1940 this figure has been increased by a little over $7,000,-
ooo. My guess would be that the cost of this litigation to the United States
has been considerably in excess of these figures.

The present procedure, while it results in substantial justice in a good
many cases, involves a very high administrative outlay. There are three
factors particularly that contribute to this high outlay. One is the amount
of duplication in the investigative work that is involved in this litigation.
In the first instance, the matter is investigated by Indian tribal attorneys,
and the cost of this investigation naturally comes out of the ultimate
recovery, if any. Most Indian tribal attorneys never do get that expendi-
ture back. Then, when a bill has been drafted, the Interior Department
and the Department of Justice conduct extensive investigations to deter-
mine whether or not the bill has merit and should be favorably reported.
The Congressional Committees do the same thing. This may happen at
several successive sessions of Congress. If the Indians are lucky enough
to get their bill passed, then the whole process of investigation begins all
over again in the Court of Claims. This investigation must be limited to
the particular case. A large part of this investigation generally goes to
the question of the disposition made of various "gratuity" appropriations,
which are commonly deducted from Indian judgments. The same ap-
propriations and the same account books must be scrutinized again and
again for each separate case. This involves a considerable delay, during
which time interest charges sometimes run against the United States.
Finally, if a judgment is rendered and the judgment is unfavorable to
the Indians, as happens in 3 out of 4 cases, the nature of the judgment
is commonly such as to pass the buck back to Congress by pointing to
some technical defect in the jurisdictional act which stands in the way
of recovery. Then the Indians have to go back to Congress and start the
whole process all over again. The result is that what should be an ex-
peditious solution of a dispute, vindicating the just claims of the Indians
and the honor of the United States, often turns into a protracted and
fruitless expenditure of time, effort, and money. The problem we face is
whether this process of redressing Indian grievances cannot be carried
out in a more efficient and economical way.

THE PROPOSED CLAIMS COMMISSION

For more than a dozen years now, friends of the Indian have been urging
a streamlined administrative solution of the Indian claims problem
through the establishment of a special commission to pass on Indian
claims. This proposal was supported by the platforms of both the Repub-

271

THE INDIAN'S QUEST FOR JUSTICE

lican and the Democratic Party in the Presidential election year of 1940
and for a time it looked as if the necessary legislation to establish such
a commission would be passed by both Houses. But the war intervened
to prevent the enactment of legislation that might result in substantial
payments for non-war purposes. Now that the war is in its last stages,
prospects for the enactment of this legislation are becoming brighter.
Two substantially similar bills (H.R. 1198 and H.R. 1341) have been in-
troduced in the House to set up an Indian Claims Commission and I
am reasonably confident that this proposed legislation will be favorably
reported by the House Committee on Indian Affairs in the very near
future. Whether it will pass will depend, of course, very largely on pop-
ular reactions to the problem. Briefly, the proposed legislation proposes
to eliminate the costs of duplicated effort, to cut down the costs of delayed
decision, and to eliminate relitigation by centralizing in a single com-
mission complete responsibility to dispose finally of all Indian claims.
There are at least three points which are essential in any legislation
of this character. One is that the legislation be comprehensive enough to
include all Indian claims, legal, equitable and moral. A second and cor-
relative point is that the proposed Commission ought not to operate on a
purely legal level as does the Court of Claims. It ought to operate as an
administrative agency empowered to reach a just solution within broad
limits established by law. Finally, the Commission ought to be set up
with such powers and appropriations that it can really do a complete
job of investigating the entire field of Indian claims, even for those tribes
which may be too poor to hire their own lawyers, and bring in within
a reasonable period of time a report which will conclude once and for
all this chapter of our national history.*

* [Ed. note: Such a commission was set up in 1946 under the Indian Claims Com-
mission Act (60 Stat. 1049). Many claims have been filed and some have been adjudi-
cated after full investigation and hearing.]

Original Indian Title

I. INDIAN CLOUDS ON LAND GRANT TITLES

Recent decisions of the Supreme Court recognizing the validity of original
Indian title l make the existence and extent of such aboriginal owner-
ship a relevant issue in title examinations whenever a chain of title is
traced back to a federal grant or patent. Grantees who have relied on the
Great Seal of a federal department as assuring the validity of land grant
titles have not infrequently discovered to their sorrow the truth of the
old French saying, "Meme la plus belle fille du monde ne peut donner
que ce qu'elle a." Not even the Federal Government can grant what it
does not have. The nature of Indian title and its extinguishment thus be-
comes, in those states that have been carved out of the federal public
domain, a matter of concern to real property lawyers generally.

The leading Supreme Court case that establishes the invalidity of
federal grants that ignore Indian title is the case of Moose Dung2 (such
being the polite English translation of Chief Monsimoh's Chippewa
name). Here a federal lease which appeared on its face to be perfectly
valid, and which had been specially confirmed by a joint resolution of
Congress,3 was held invalid by the Supreme Court, on the ground that

1. United States as Guardian of the Hualpai Indians v. Santa Fe Pacific RJR..,
(1941) 314 U.S. 339; United States v. Alcea Band of Tillamooks, (1946) 329 U.S. 40.

2. Jones v. Meehan, (1899) 175 U.S. i.

3. Joint Resolution of August 4, 1894, 28 Stat. 1018.

Published in Minnesota Law Review, 1947. In 1947 Felix Cohen set forth this
analysis of the trend of Supreme Court decisions regarding original Indian title.
Following publication of the article came the Supreme Court's second Alcea decision
(341 U.S. 48 [1951]), which appeared to break with the past views of the Court on
original Indian title. The second Alcea decision was rendered in the form of a brief
per curiam opinion. It was followed by Tee-Hit-Ton Indians v. U.S. (348 U.S. 272
t^SS])* which rejected the thesis of the article that original Indian title vested a
constitutionally protected right in Indians. This article can be looked upon as an
a priori dissenting view on this issue. The dissent by Justices Warren, Frankfurter,
and Douglas did not reach the constitutional question.

THE INDIAN'S QUEST FOR JUSTICE

neither the Secretary of the Interior nor the Congress of the United States
had constitutional power to disregard Indian property rights. The right
to dispose of this property, the Court held, was vested in the Indian
owner, Chief Moose Dung the Younger. By tribal custom he was entitled
to the land that had been promised 4 to his father, Chief Moose Dung
the Elder. The Court accordingly held that Jones, the lessee under a lease
executed and approved by the Department of the Interior,5 could be
evicted by the Meehans, who had relied on an unapproved lease, allowing
the use of land for lumbering purposes, granted by the Indian owner, the
younger Moose Dung, The Supreme Court summed up its decision in
these words:

The title to the strip of land in controversy, having been granted
by the United States to the elder chief Moose Dung by the treaty
itself, and having descended, upon his death, by the laws, customs
and usages of the tribe, to his eldest son and successor as chief, Moose
Dung the younger, passed by the lease executed by the latter in 1891
to the plaintiffs for the term of that lease; and their rights under that
lease could not be divested by any subsequent action of the lessor, or
of Congress, or of the Executive Departments, (p. 32)

Standing by itself, the decision in Jones v. Meehan might be narrowly
interpreted as applying only where Indian land rights were assured and
recognized by treaty. But the case of Cramer v. United States,6 decided
24 years later, made it plain that the Supreme Court would not so limit
the rule of respect for Indian title. For in the Cramer case the Indian
title had never been recognized by treaty, act of Congress, or Executive
order. What was involved was an area claimed by Indians by right of
occupancy initiated before 1859. Yet the Supreme Court held that the
Indian right of occupancy, even though it had not been formally rec-
ognized, was not terminated by a subsequent statutory grant. In this case
the Court did not face the constitutional question of whether a valid

4. By Section 9 of the Treaty of Oct. 2, 1863, 13 Stat. 667, 671.

5. The Interior lease of 1894 had the approval of all the descendants of Moose
Dung the Elder, but the Court considered this irrelevant, on the ground that the
Interior Department had no authority to disregard tribal customs on questions of
inheritance and that, according to Chippewa custom, the eldest son took the land and
had full power to dispose of its use. The Court quoted with approval (at p. 31) the
comment of Justice Brewer (then Circuit Judge) in a somewhat similar case, that
the Secretary of the Interior "had no judicial power to adjudge a forfeiture, to decide
questions of inheritance, or to divest the owner of his title without his knowledge or
consent." Richardville v. Thorp, (C.C,, D. Kans., 1866) 28 Fed. 52, 53.

6. (1923) 261 TLS. 219.

ORIGINAL INDIAN TITLE

grant divesting Indian title could have been made to the railroad, since
it was able to put upon the Congressional grant a narrow construction
that saved the land rights of the Indians. The railroad land grant statute 7
in the Cramer case had excepted from the scope of the grant all lands
"reserved ... or otherwise disposed of." The Department of the In-
terior, in 1904, issued patents to the Central Pacific Railway Company,
on the assumption that there was no reservation or other encumbrance
to prevent the passage of full title to the grantee. Yet the Supreme Court,
in 1923, held that this departmental action disregarding Indian rights
was erroneous. "The fact that such [Indian] right of occupancy finds no
recognition in any statute or other formal governmental action is not
conclusive. The right, under the circumstances here disclosed, flows from
a settled governmental policy/' (p. 229)

The policy on which the Supreme Court based its decision in the
Cramer case it spelled out in these words:

Unquestionably it has been the policy of the Federal Government
from the beginning to respect the Indian right of occupancy, which
could only be interfered with or determined by the United States.
Beecher v. Wetherby, 95 U.S. 517, 525; Minnesota v. Hitchcock, 185
U.S. 373, 385. It is true that this policy has had in view the original
nomadic tribal occupancy, but it is likewise true that in its essential
spirit it applies to individual Indian occupancy as well; and the
reasons for maintaining it in the latter case would seem to be no less
cogent, since such occupancy being of a fixed character lends support
to another well understood policy, namely, that of inducing the In-
dian to forsake his wandering habits and adopt those of civilized life.
That such individual occupancy is entitled to protection finds strong
support in various rulings of the Interior Department, to which in
land matters this Court has always given much weight. Midway Co.
v. Eaton, 183 U.S. 602, 609; Hastings fc Dakota R.R. Co. v. Whitney,
132 U.S. 357, 366. That department has exercised its authority by
issuing instructions from time to time to its local officers to protect
the holdings of non-reservation Indians against the efforts of white
men to dispossess them. See 3 L.D. 371; 6 L.D. 341; 32 L.D. 382, In
Poisal v. Fitzgerald, 15 L.D. 19, the right of occupancy of an indi-
vidual Indian was upheld as against an attempted homestead entry
by a white man. In State of Wisconsin, 19 L.D. 518, there had been
granted to the State certain swamp lands within an Indian reserva-
tion, but the right of Indian occupancy was upheld, although the

7. Act of July 25, 1866, 14 Stat. 239.

275

THE INDIAN'S QUEST FOR JUSTICE

grant in terms was not subject thereto. In Ma-Gee-See v. Johnson,
30 L.D. 125, Johnson had made an entry under Par. 2289, Rev. Stats.,
which applied to "unappropriated public lands/' It appeared that
at the time of the entry and for some time thereafter the land had
been in the possession and use of the plaintiff, an Indian. It was
held that under the circumstances the land was not unappropriated
within the meaning of the statute, and therefore not open to entry.
In Schumacher v. State of Washington, 33 L.D. 454, 456, certain lands
claimed by the State under a school grant, were occupied and had
been improved by an Indian living apart from his tribe, but ap-
plication for allotment had not been made until after the State had
sold the land. It was held that the grant to the State did not attach
under the provision excepting lands "otherwise disposed of by or
under authority of an act of Congress." Secretary Hitchcock, in de-
ciding the case, said:

"It is true that the Indian did not give notice of his intention
to apply for an allotment of this land until after the State had
made disposal thereof, but the purchaser at such sale was bound
to take notice of the actual possession of the land by the Indian
if, as alleged, he was openly and notoriously in possession thereof
at and prior to the alleged sale, and that the act did not limit the
time within which application for allotment should be made."
Congress itself, in apparent recognition of possible individual In-
dian possession, has in several of the state enabling acts required the
incoming State to disclaim all right and title to lands "owned or
held by any Indian or Indian tribes." See 25 Stat. 676, c 180, Par.
4, par. 2; 28 Stat. 107, c. 138, Par. 3, par. 2.

The action of these individual Indians in abandoning their no-
madic habits and attaching themselves to a definite locality, reclaim-
ing, cultivating and improving the soil and establishing fixed homes
thereon was in harmony with the well understood desire of the Gov-
ernment which we have mentioned. To hold that by so doing they
acquire no possessory rights to which the Government would accord
protection, would be contrary to the whole spirit of the traditional
American policy toward these dependent wards of the nation.

As against these general indications of a policy to respect Indian oc-
cupancy rights, the defendant Cramer, the railroad's assignee, argued that
in this particular case the Interior Department had concluded that the
Indians had no rights to the land, had recognized the title o£ the rail-
road grantee, and had in fact negotiated a lease of the land from the
defendant. This argument the Court rejected, with the comment:

276

ORIGINAL INDIAN TITLE

Neither is the Government estopped from maintaining this suit by
reason of any act or declaration of its officers or agents. Since these
Indians with the implied consent of the Government had acquired
such rights of occupancy as entitled them to retain possession as
against the defendants, no officer or agent of the Government had
authority to deal with the land upon any other theory. The ac-
ceptance of leases for the land from the defendant company by agents
of the Government was, under the circumstances, unauthorized and
could not bind the Government; much less could it deprive the In-
dians of their rights, (p. 234)

The lower court was accordingly instructed "to amend its decree so as
to cancel the patent in respect of the lands possessed by the Indians."
(p. 236)

Such was the state of the law when, in 1925, the Department of the
Interior sought to patent half of the Hualapai Indian Reservation in
Arizona to the Santa Fe Pacific Railway. The theory of this transaction
was that when the reservation was established in 1883 half of the land,
i.e., the odd-numbered sections, already belonged to the railroad grantee
under the act of July 27, 1866 (14 Stat. 292). Congress implicitly ratified
this view of the situation when it authorized the Secretary of the Interior
to arrange an exchange of Indian and railroad lands within the reserva-
tion which would simplify the boundaries between railroad and Indian
lands.8 But when the Interior Department tried to carry out the mandate
of Congress, the Indians and their friends 9 objected on the ground that
the railroad, rightfully, had no lands to exchange, since aboriginal title
long antedated the railroad grant. After some years of protests, charges,
counter-charges, and administrative opinions rejecting the Indians' con-
tentions,10 a suit was instituted in 1937 to vindicate the possessory rights
of the Indians. (Here, as in the Cramer case, there was no treaty or act of
Congress confirming or defining the Indians' rights). When the case
reached the Supreme Court in 1941, after two decisions against the In-
dians in the lower courts, the Attorney General of Arizona filed a brief
urging that "Any suggestion by this Court that Indian tribes might have
rights in property enforcible in a court of law by the mere fact of oc-

8. Act of February 20, 1925, 43 Stat. 954.

9. See letters and resolutions of Indian Rights Association and other organizations
printed in Walapai Papers, (1936) Sen. Doc. No. 273, 74th Cong., 2d sess., pp. 251,

10. See Opinion of E. C. Finney, Solicitor of the Department of the Interior, dated
September 16, 1931, and letter of Assistant Attorney General Richardson, dated Nov.
12, 1931, printed in Walapai Papers, supra note 9, pp. 319-27.

277

THE INDIAN'S QUEST FOR JUSTICE

cupancy would at least cast a cloud upon the title to the major portion of
Arizona/* n

Despite this warning, the Supreme Court unanimously decided the
issue in favor of the Indians, holding that Indian occupancy, even though
unrecognized by treaty or act of Congress, established property rights
valid against non-Indian grantees such as the defendant railroad. The
Court did not have to face the constitutional issue which it decided in
Jones v. Meehan, because here, as in the Cramer case, there was language
in the Congressional granting act which could be interpreted as protect-
ing and safeguarding Indian rights.

While the Court did not therefore pass on the validity of any legisla-
tion, it did necessarily pass on the validity of departmental action pur-
porting to recognize railroad rights to the exclusion of Indian rights.
With respect to this, the unanimous opinion of the Court declared: "Such
statements by the Secretary of the Interior as that 'title to the odd-
numbered sections' was in the respondent [railroad] do not estop the
United States from maintaining this suit. For they could not deprive the
Indians of their rights any more than could the unauthorized leases in
Cramer v. United States, supra." (p. 355)

At the same time the Court rejected various other contentions ad-
vanced by the railroad, such as the argument that Indian land rights had
been wiped out by the Mexican cession treaty 12 or by acts of Mexican
or Spanish sovereignty, or by a long course of Congressional statutes open-
ing western lands to settlement. The upshot of the case was that on March
13, 1947, the trial court entered a decree, consented to by all parties,
establishing Indian title to some 509,000 acres of land which two Depart-
ments of the Government had promised to the defendant railroad. Not-
withstanding the fears expressed by the Attorney General of Arizona,
there has been no substantial decline in Arizona realty values as a result
of the decision.

The fears expressed by the Attorney General of Arizona were not, on
the surface, unreasonable. Concern lest arguments in favor of the In-
dians might result in imposing vast liabilities on the Federal Govern-
ment led the Attorney General of the United States in 1941, to decline to
argue the case, so that the Indian side of the case had to be presented by
the Solicitor of the Department of the Interior.

A similar fear was recently expressed by the three justices of the Su-
preme Court who dissented from the decision of the Court in the Alcea
case 1S on the ground that this decision, awarding compensation for a

11. Brief for the State of Arizona, et al., p. 2.

12. Treaty of Guadalupe Hidalgo, February 2, 1848, 9 Stat. 922.

13. Cited supra note i.

ORIGINAL INDIAN TITLE

taking of original Indian title, would set a precedent compelling the
United States to pay other tribes for other areas so taken, which "must
be large" (p. 56).

The fear that recognizing Indian title, or paying Indians for land,
would unsettle land titles everywhere and threaten the Federal Govern-
ment with bankruptcy would be well grounded if there were any factual
basis for the current legend of how we acquired the United States from
the Indians. If, as the cases hold, federal grants are normally subject to
outstanding Indian titles, and if, over extensive areas where such grants
have been made, Indian title has in fact never been lawfully extinguished,
then a vast number of titles must today be subject to outstanding Indian
possessory rights. The fact, however, is that except for a few tracts of
land in the Southwest, practically all of the public domain of the con-
tinental United States (excluding Alaska) has been purchased from the
Indians. It was only because the Hualapai case fell within an area where
no Indian land cessions had been effected that the railroad title was held
invalid. This means, of course, that the titles of railroads and other
grantees of the Federal Government elsewhere in the United States may
likewise depend upon whether the Federal Government took the precau-
tion of settling with Indian land owners before disposing of their land.

Fortunately for the security of American real estate titles, the business
of securing cessions of Indian titles has been, on the whole, conscientiously
pursued by the Federal Government, as long as there has been a Federal
Government. The notion that America was stolen from the Indians is
one of the myths by which we Americans are prone to hide our real virtues
and make our idealism look as hard-boiled as possible. We are probably
the one great nation in the world that has consistently sought to deal
with an aboriginal population on fair and equitable terms. We have not
always succeeded in this effort but our deviations have not been typical.

It is, in fact, difficult to understand the decisions on Indian title or to
appreciate their scope and their limitations if one views the history of
American land settlement as a history of wholesale robbery. The basic
historic facts are worth rehearsing before we attempt analysis of the cases
dealing with the character and scope of original Indian title.

II. How WE BOUGHT THE UNITED STATES14

Every American schoolboy is taught to believe that the lands of the
United States were acquired by purchase or treaty from Britain, Spain,

14. Some of the material in this section appears in "How We Bought the United
States," Collier's, Jan. 19, 1946, pp. 23, 62, 77, and in an adaptation thereof in This
Month, May, 1946, pp. 106-10.

THE INDIAN'S QUEST FOR JUSTICE

France, Mexico, and Russia, and that for all the continental lands so
purchased we paid about 50 million dollars out of the Federal Treasury.
Most of us believe this story as unquestioningly as we believe in electricity
or corporations. We have seen little maps of the United States in our
history books and big maps in our geography books showing the vast
area that Napoleon sold us in 1803 for 15 million dollars and the various
other cessions that make up the story of our national expansion. As for
the original Indian owners of the continent, the common impression is
that we took the land from them by force and proceeded to lock them up
in concentration camps called "reservations."

Notwithstanding this prevailing mythology, the historic fact is that
practically all of the real estate acquired by the United States since 1776
was purchased not from Napoleon or any other emperor or czar but from
its original Indian owners.15 What we acquired from Napoleon in the
Louisiana Purchase was not real estate, for practically all of the ceded
territory that was not privately owned by Spanish and French settlers was
still owned by the Indians, and the property rights of all the inhabitants
were safeguarded by the terms of the treaty of cession.16 What we did
acquire from Napoleon was not the land, which was not his to sell, but
simply the power to govern and to tax, the same sort of power that we
gained with the acquisition of Puerto Rico or the Virgin Islands a cen-
tury later.

It may help us to appreciate the distinction between a sale of land
and the transfer of governmental power if we note that after paying

15. This discrepancy between common opinion and historic fact was commented
upon by Thomas Jefferson:

"That the lands of this country were taken from them by conquest, is not so general
a truth as is supposed. I find in our historians and records, repeated proofs of pur-
chase, which cover a considerable part of the lower country; and many more would
doubtless be found on further search. The upper country, we know, has been acquired
altogether by purchases made in the most unexceptional form," (Thomas Jefferson,
"Notes on the State of Virginia, 1781-1785," reprinted in Padover, The Complete
Jefferson (1943), p. 633.)

16. The Treaty of April 30, 1803, for the cession of Louisiana, provided:

"Art. III. The inhabitants of the ceded territory shall be incorporated in the Union
of the United States, and admitted as soon as possible, according to the principles
of the Federal constitution, to the enjoyment of all the rights, advantages and im-
munities of citizens of the United States; and in the meantime they shall be main-
tained and protected in the free enjoyment of their liberty, property, and the religion
which they profess."

"Art. VI. The United States promise to execute such treaties and articles as may
have been agreed between Spain and the tribes and nations of Indians, until by mutual
consent of the United States and the said tribes or nations, other suitable articles shall
have been agreed upon/*

280

ORIGINAL INDIAN TITLE

Napoleon 15 million dollars for the cession of political authority over
the Louisiana Territory we proceeded to pay the Indian tribes of the
ceded territory more than twenty times this sum for such lands in their
possession as they were willing to sell. And while Napoleon, when he
took his 15 million dollars, was thoroughly and completely relieved of all
connections with the territory, the Indian tribes were wise enough to
reserve 17 from their cession sufficient land to bring them a current in-
come that exceeds each year the amount of our payment to Napoleon.
One of these reservations, that of the Osages, has thus far brought its
Indian owners 280 million dollars in oil royalties. Some other Indian
tribes, less warlike, or less lucky, than the Osages, fared badly in their real
estate transactions with the Great White Father. But in its totality the
account of our land transactions with the Indians is not small potatoes.
While nobody has ever calculated the total sum paid by the United States
to Indian tribes as consideration for more than two million square miles
of land purchased from them, and any such calculation would have to
take account of the conjectural value of a myriad of commodities, special
services, and tax exemptions, which commonly took the place of cash, a
conservative estimate would put the total price of Indian lands sold to
the United States at a figure somewhat in excess of 800 million dollars.

In some cases payment for ceded land has been long delayed. Most of
the State of California falls within an area which various Indian tribes
of that region had undertaken to cede to the United States in a series of
treaties executed in the 1 850*5. The treaties called for a substantial pay-
ment in lands, goods, and services. The Federal Government took the
land but the Senate refused to ratify the treaties, which were held in
secret archives for more than half a century. Eventually Congress au-
thorized the Indians to sue in the Court of Claims for the compensation
promised under the unratified treaties,18 and that Court found that the
Indians were entitled to receive $17,053,941.98, from which, however,
various past expenditures by the Federal Government for the benefit of
the California Indians had to be deducted. The net recovery amounted to
$5,024,842.34.

The settlement of the California land claims closes a chapter in our
national history. Today we can say that from the Atlantic to the Pacific

17. "Indian reservations" acquired their name from the fact that when Indians
ceded land they commonly made "reservations" of land to be retained in Indian owner-
ship. This practice goes back at least to 1640, when Uncas, the Mohican chief, deeded
a large area to the Colony of Connecticut, out of which he carved a reservation for
himself and his tribe. See Trumbull, History of Connecticut, i (1818) 117.

18. Act of May 18, 1928, 45 Stat. 602.

281

THE INDIAN'S QUEST FOR JUSTICE

our national public domain consists, with rare exceptions,19 of lands that
we have bought from the Indians. Here and there we have probably
missed a tract, or paid the wrong Indians for land they did not own and
neglected the rightful owners. But the keynote of our land policy has
been recognition of Indian property rights.20 And this recognition of In-

19. The most significant exception is Alaska, where the Federal Government has
not yet acquired any land from any of the native tribes. Cf. Miller v. United States,
(C.CA. gth, 1947) 159 F. (sd) 997. Other areas for which no compensation appears
to have been made are found in Southeastern California, Southern Nevada, Arizona
and New Mexico. See Frontispiece to 4th ed. of Cohen, Handbook of Federal Indian
Law (1945).

20. The Report of the Commissioner of Indian Affairs for 1872 contains the fol-
lowing illuminating comments:

"Such being the right of the Indians to the soil, the United States for more than
eighty-five years pursued a uniform course of extinguishing the Indian title only
with the consent of those Indian tribes which were recognized as having claim by
reason of occupancy: such consent being expressed in treaties, to the formation of
which both parties approached as having equal rights of initiative, and equal rights
in negotiation. These treaties were made from time to time (not less than 372 being
embraced in the General Statutes of the United States) as the pressure of white settle-
ments or the fear or the experience of Indian hostilities made the demand for the
removal of one tribe after another urgent imperative. Except only in the case of the
Indians in Minnesota, after the outbreak of 1862, the United States Government has
never extinguished an Indian title as by right of conquest; and in this latter case the
Government provided the Indians another reservation, besides giving them the proceeds
of the sales of the lands vacated by them in Minnesota. So scrupulously up to that
time had the right of the Indians to the soil been respected, at least in form. It is
not to be denied that wrong was often done in fact to tribes in the negotiation of
treaties of cession. The Indians were not infrequently overborne or deceived by the
agents of the Government in these transactions; sometimes, too unquestionably, power-
ful tribes were permitted to cede lands to which weaker tribes had a better claim,
but, formally at least, the United States accepted the cession successively of all lands
to which Indian tribes could show color of title, which are embraced in the limits of
any of the present States of the Union, except California and Nevada. Up to 1868,
moreover, the greater portion of the lands embraced within the present Territories of
the United States, to which Indians could establish a reasonable claim on account
of occupancy, had also been ceded to the United States in treaties formally complete
and ratified by the Senate.

"This action of Congress [terminating the process of making treaties with Indian
tribes] does, however, present questions of considerable interest and of much difficulty,
viz: What is to become of the rights of the Indians to the soil, over portions of terri-
tory which had not been covered by treaties at the time Congress put an end to the
treaty system? What substitute is to be provided for that system, with all its absurdities
and abuses? How are Indians, never yet treated with, but having every way as good
and as complete rights to portions of our territory as had the Cherokees, Creeks,

ORIGINAL INDIAN TITLE

dian property rights, far from hampering the development of our land,
was of the greatest significance in such development. Where the govern-
ment had to pay Indians for land it could not afford to give the land
away to favored retainers who could, in turn, afford to hold the land in
idleness. Because land which the government had paid for had to be sold
to settlers for cash or equivalent services, our West has escaped the fate
of areas of South America, Canada, and Australia, which, after being
filched from native owners, were turned over, at the same price, to court
favorites, government bureaus, or other absentee owners incapable of,
or uninterested in, developing the potential riches of the land.

Granted that the Federal Government bought the country from the
Indians, the question may still be raised whether the Indians received
anything like a fair price for what they sold. The only fair answer to
that question is that except in a very few cases where military duress was
present the price paid for the land was one that satisfied the Indians.
Whether the Indians should have been satisfied and what the land would
be worth now if it had never been sold are questions that lead us to
ethereal realms of speculation. The sale of Manhattan Island for $24
is commonly cited as a typical example of the white man's overreaching.
But even if this were a typical example, which it is not, the matter of
deciding whether a real estate deal was a fair bargain three hundred
years after it took place is beset by many pitfalls. Hindsight is better
than foresight, particularly in real estate deals. Whether the land the
Dutch settlers bought would become a thriving metropolis or remain
a wilderness, whether other Indian tribes or European powers would
respect their title, and how long the land would remain in Dutch owner-

Choctaws, and Chickasaws, for instance, to the soil of Georgia, Alabama, and Missis-
sippi, to establish their rights? How is the Government to proceed to secure their
relinquishment of their lands, or to determine the amount of compensation which
should be paid therefor? Confiscation, of course, would afford a very easy solution for
all difficulties of title, but it may fairly be assumed that the United States Government
will scarcely be disposed to proceed so summarily in the face of the unbroken practice
of eighty-five years, witnessed in nearly four hundred treaties solemnly ratified by
the Senate, not to speak of the two centuries and a half during which the principal
nations of Europe, through all their wars and conquests, gave sanction to the rights
of the aborigines.

"The limits of the present report will not allow these questions to be discussed; but
it is evident that Congress must soon, if it would prevent complications and unfortu-
nate precedents, the mischiefs of which will not be easily repaired, take up the whole
subject together, and decide upon what principles and by what methods the claims
of Indians who have not treaty relations with the Government, on account of their
original interest to the soil, shall be determined and adjusted . . ."

283

THE INDIAN'S QUEST FOR JUSTICE

ship were, in 1626, questions that were hid in the mists of the future.
Many acres of land for which the United States later paid the Indians
in the neighborhood of $1.25 an acre, less costs of surveying, still remain
on the land books of the Federal Government, which has found no pur-
chasers at that price and is now content to lease the lands for cattle graz-
ing at a net return to the Federal Government of one or two cents per
annum per acre.

Aside from the difference between hindsight and foresight, there is the
question of the value of money that must be considered wherever we seek
to appraise a goo-year-old transaction. There are many things other than
Manhattan Island that might have been bought in 1626 for $24 that
would be worth great fortunes today. Indeed if the Indians had put
the $24 they received for Manhattan at interest at 6 per cent they could
now, with the accrued interest, buy back Manhattan Island at current
realty valuations and still have four hundred million dollars or more left
over. Besides which, they would have saved the billions of dollars that
have been spent on streets, harbors, aqueducts, sewers, and other public
improvements to bring the realty values of the island to their present
level.

Again in appraising the value of $24 worth of goods in 1626 one must
take account of the cost of delivery. How much did it cost in human life
and labor to bring $24 worth of merchandise from Holland to Manhattan
Island across an almost unknown ocean? What would $24 worth of food
f.o.b. New York be worth to an exploring party at the South Pole today
that needed it?

These are factors which should caution against hasty conclusions as to
the inadequacy of payments for land sales made hundreds of years ago,
even when such sales were made between white men. But in the earliest
of our Indian land sales we must consider that representatives of two en-
tirely different civilizations were bargaining with things that had very
different values to the different parties. It is much as if a representative
of another planet should offer to buy sea water or nitrogen or some other
commodity of which we think we have a surplus and in exchange offer
us pocket television sets or other products of a technology higher than
our own. We would make our bargains regardless of how valuable
nitrogen or sea water might be on another planet and without consider-
ing whether it cost two cents or a thousand dollars to make a television
set in some part of the stellar universe that we could not reach. In these
cases we would be concerned only with the comparative value to us of
what we surrendered and what we obtained.

So it was with the Indians. What they secured in the way of knives,

284

ORIGINAL INDIAN TITLE

axes, kettles and woven cloth, not to mention rum and firearms,21 repre-
sented produce of a superior technology with a use value that had no
relation to value in a competitive market three thousand miles across
the ocean. And what is probably more important, the Indians secured,
in these first land transactions, something of greater value than even
the unimagined products of European technology, namely, a recognition
of the just principle that free purchase and sale was to be the basis of
dealings between the native inhabitants of the land and the white im-
migrants.

Three years after the sale of Manhattan Island the principle that In-
dian lands should be acquired only with the consent of the Indians was
written into the laws of the Colony of New Netherlands: "The Patroons
of New Netherlands, shall be bound to purchase from the Lords Sachems
in New Netherland, the soil where they propose to plant their colonies,
and shall acquire such right thereunto as they will agree for with the
said Sachems." 22 Connecticut, New Jersey, and Rhode Island were quick
to adopt similar laws and within a short time all of the colonies had
adopted laws in the same vein. Only in Massachusetts and North Caro-
lina were there significant departures from this just and honorable policy.
In North Carolina generally anarchic conditions left individual settlers
relatively free to deal with or dispose of Indians as they pleased, with
the result that less than half of the state was actually purchased from
the natives. In Massachusetts, although Plymouth Colony "adopted the
just policy of purchasing from the natives the lands they desired to ob-
tain" (Royce, op. cit. p. 601), Puritan Massachusetts, with much pious
citation of Old Testament precedents, asserted the right to disregard
Indian claims to unimproved and uncultivated lands. Despite this claim,
the Puritans were prudent enough to purchase considerable areas of land
from the native inhabitants.

In 1636 one of the most famous real estate transactions in American
history took place when Chief Canonicus of the Narragansetts granted
to Roger Williams and his 12 companions, "all that neck of land lying
between the mouths of Pawtucket and Moshasuck rivers, that they might
sit down in peace upon it and enjoy it forever."

Here, as Williams observed to his companions, "The Providence of God

21. In addition to the items listed above, items commonly listed in the earliest
treaties are: flints, scissors, sugar, clothing, needles and hoes. Later treaties commonly
mention horses, cattle, hogs, sheep, farm implements, looms, sawmills, flour mills,
boats, and wagons.

22. "New Project of Freedoms and Exemptions, Article 27," reprinted in Royce,
Indian Land Cessions in the United States (i8th Annual Report, Bureau of American
Ethnology, 1900) p. 577.

285

THE INDIAN'S QUEST FOR JUSTICE

had found out a place for them among savages, where they might peace-
ably worship God according to their consciences; a privilege which had
been denied them in all the Christian countries they had ever been in."
Perhaps it was only natural that the first settlers on these shores, who
were for many decades outnumbered by the Indians and unable to defeat
any of the more powerful Indian tribes in battle, should have adopted
the prudent procedure of buying lands that the Indians were willing to
sell instead of using the more direct methods of massacre and displace-
ment that have commonly prevailed in other parts of the world. What
is significant, however, is that at the end of the i8th Century when our
population east of the Mississippi was at least 20 times as great as the
Indian population in the same region and when our army of Revolu-
tionary veterans might have been used to break down Indian claims to
land ownership and reduce the Indians to serfdom or landlessness, we
took seriously our national proclamation that all men are created equal
and undertook to respect the property rights which Indians had enjoyed
and maintained under their rude tribal governments. Our national policy
was firmly established in the first great act of our Congress, the North-
west Ordinance of July 13, 1787, which declared:

Art. 3. ... The utmost good faith shall always be observed to-
wards the Indians; their land and property shall never be taken
from them without their consent; and in their property, rights and
liberty, they never shall be invaded or disturbed, unless in just and
lawful wars authorized by Congress; but laws founded in justice and
humanity shall from time to time be made, for preventing wrongs
being done to them, and for preserving peace and friendship with
them.

Here was a principle of government far higher than contemporary
standards of private dealing. During much of this period pioneers were
shooting Indians and denouncing the long arm of the Federal bureauc-
racy that tried to protect Indian lands from trespass and Indians from
debauchery.23 The most famous of all Indian cases 24 was one in which
the Supreme Court of the United States denied the power of the State
of Georgia to invade the territory of the Cherokees, guaranteed by Fed-
eral treaty, and the State of Georgia defied the mandate of the Court,
whereupon the tough Indian fighter in the White House grimly declared:

23. This refrain is still heard in remote mining towns of Arizona and in Alaska,
particularly among survivors of the Alaskan Gold Rush, who knew what to do when
they saw an Indian.

24. Worcester v. Georgia, (1833) 6 Pet. 515.

286

ORIGINAL INDIAN TITLE

"John Marshall has made his decision; now let him enforce it." 25 But
the Congress and the Federal Courts stood by the principle of respect
for Indian possessions until it won common acceptance.

As far back in our national history as 1794 we find the United States
agreeing to pay the Iroquois, for a cession of land, the sum of $4,500
annually forever, in "clothing, domestic animals, implements of hus-
bandry, and other utensils . . . and in compensating useful artificers who
shall ... be employed for their benefit/' 26 The payments are still being
made, with much ceremony. In 1835 we ^n^ tne Federal Government
buying a tract of land from the Cherokees for 5 million dollars,27 a very
large part of the annual national budget in those days.28 In 1904 the
Turtle Mountain Chippewa sold a large part of North Dakota to the
United States for one million dollars.29 To this day we are paying Indians
for lands long ago conveyed. Only occasionally does this payment take
the form of cash. Far-seeing Indian chiefs knew that cash would soon
be dissipated and leave later generations helpless in an alien world that
had no place for ancient skills of hunters. Regularly the old treaties
called for payments in goods, chiefly agricultural implements and cattle,
in services — above all medical services and education — and in such spe-
cial privileges as exemption from certain land taxes, because of which
the Federal Government must now furnish to Indians many services
which states and counties refuse to provide. It was to furnish these serv-
ices that the Indian Bureau was established, and to this day the appropria-
tions to that Bureau go primarily to paying for these promised services.
We have already spent at least one and a half billion dollars on our
Indian population, and more than half of this sum is traceable to obliga-
tions based on land cessions.

This is not to say that our Indian record is without its dark pages. We
have fallen at times from the high national standards we set ourselves.

The purchase of more than two million square miles of land from the
Indian tribes represents what is probably the largest real estate transac-
tion in the history of the world. It would be miraculous if, across a
period of 150 years, negotiations for the purchase and sale of these lands
could be carried on without misunderstandings and inequities. We have
been human, not angelic, in our real-estate transactions. We have driven

25. Greeley, American Conflict, i (1864), 106.

26. Treaty of November 11, 1794, 7 Stat. 44.

27. Treaty of December 29, 1835, 7 Stat. 478.

28. The total expenditures of the Federal Government in 1835 amounted to 17,6
million dollars. See Report of Secretary of the Treasury (1946), p. 366.

29. Act of April 21, 1904, 33 Stat. 189, 195.

287

THE INDIAN'S QUEST FOR JUSTICE

hard Yankee bargains when we could; we have often forgotten to make
the payments that we promised, to respect the boundaries of lands that
the Indians reserved for themselves, or to respect the privileges of tax
exemption, or hunting and fishing, that were accorded to Indian tribes
in exchange for the lands they granted us. But when Congress has been
fairly apprised of any deviation from the plighted word of the United
States, it has generally been willing to submit to court decision the claims
of any injured Indian tribe.30 And it has been willing to make whatever
restitution the facts supported for wrongs committed by blundering or
unfaithful public servants. There is no nation on the face of the earth
which has set for itself so high a standard of dealing with a native
aboriginal people as the United States and no nation on earth that has
been more self-critical in seeking to rectify its deviations from those high
standards.

The 5 million dollar judgment won by the California Indians is only
the most recent of a series of awards won by Indian tribes in the Federal
Courts. In 1938 the Supreme Court awarded the Shoshone Tribe of
Wyoming a judgment of $4,408,444.23, as compensation for the loss of a
part of the Shoshone Reservation which Federal authorities illegally (i.e.
without the consent of the Shoshone owners of the reservation) assigned
to Indians of another tribe.31 The same session of the Court affirmed a
judgment in favor of the Klamath Indians for 15,313,347.32, the value
of lands reserved by the Klamaths for their own use which the United
States erroneously conveyed to the State of Oregon.32 What is important
about these cases is that they represent an honest, if sometimes belated,
effort to make good on the promises that the Federal Government has
made to Indian tribes in acquiring the land of this nation. And, as a
great leader of the 30 million Indians who dwell south of our borders
has said, what is great about democracy is not that it does not make mis-
takes, but that It is willing to correct the human mistakes it has made.33

III. THE DOCTRINAL ORIGINS OF INDIAN TITLE

The decisions on Indian title can hardly be understood unless it is rec-
ognized that dealings between the Federal Government and the Indian

30. For many decades such cases were tried under special jurisdictional acts. By the
act of August 6, 1946, all existing tribal claims against the Government were referred
to a special Indian Claims Commission, and jurisdiction was granted to the Court of
Claims to hear and decide all future tribal claims. See 60 Stat. 1049, 25 U.S.CA.
(1946 Supp.) 70, 28 U.S.C.A. (1946 Supp.) 2593.

31. United States v, Shoshone Tribe, (1938) 304 U.S. ui.

32. United States v. Klamath Indians, (1938) 304 U.S. 119.

33. Padilla, Free Men of America (1943), p. 71.

588

ORIGINAL INDIAN TITLE

tribes have regularly been handled as part of our international relations.
As in other phases of law which turn on international relations, common
law concepts have become heavily overlaid with continental jurispru-
dence. Our concepts of Indian title derive only in part from common law
feudal concepts. In the main, they are to be traced to Spanish origins,
and particularly to doctrines developed by Francisco de Vitoria, the real
founder of modern international law.34

The argument that Indians stood in the way of civilization and that
progress demanded that they be pushed from the lands they claimed, fell
as lightly from the lips of i6th century pirates and conquistadores as it
does from those of the soth century. The contrary suggestion, first ad-
vanced by Vitoria, a university professor at Salamanca, that Indians were
human beings and that their land titles were entitled to respect even
when not graced by seals and ribbons, was denounced as "long haired
idealism" by "practical minded" men in the i6th century, as it is today.
But, in the long run, this idealistic and supposedly impractical concept
of human rights helped to build the greatest state and the strongest
economy in the world. The conquistadores and pirates of i6th century
Spain and their lawyer spokesmen, in attempting to justify a wholesale
seizure of Indian lands in the New World, urged that Indians were
heretics, tainted with mortal sin, and irrational. To this argument Vitoria
replied that even heretics and sinners were entitled to own property and
could not be punished for their sins without trial, and that the Indians
were at least as rational as some of the people of Spain. Vitoria cites as
precedents, in support of Indian property rights, cases of heretics and
sinners in Europe and in ancient Palestine whose rights were acknowl-
edged by the highest Church authorities. Implicit in the argument is
the doctrine that certain basic rights inhere in men as men not by reason
of their race, creed, or color, but by reason of their humanity.

To the argument that the Pope had given Indian lands to the Kings
of Spain and Portugal, Vitoria replied that the Pope had "no temporal
power over Indian aborigines" (De Indis, 2, 6). Thus a division of the
New World by the Pope could serve only as an allocation of zones for
trading and proselytizing purposes, not as a distribution of land (De
Indis, 3, 10).

34. James Brown Scott, former Solicitor for the Department of State and President
of the American Institute of Law, the American Society of International Law, and
the Institut de Droit International, in his brochure on The Spanish Origin of Inter-
national Law (1928), comments: "In the lecture of Vitoria on the Indians, and in his
smaller tractate on War, we have before our very eyes, and at hand, a summary of
the modern law of nations." The Seventh Pan-American Conference, on December
23, *943» acclaimed Vitoria as the man "who established the foundations of modern
international law."

289

THE INDIAN'S QUEST FOR JUSTICE

The shibboleth of "title by discovery" Vitoria disposes of summarily.
Discovery gives title to lands not already possessed. But as the Indians
"were true owners, both from the public and the private standpoint/' the
discovery of them by the Spaniards had no more effect on their property
than the discovery of the Spaniards by the Indians had on Spanish
property.35

The doctrine of Vitoria was given papal support in 1537 by the Bull
Sublimis Deus, in which Pope Paul III proclaimed:

We, who, though unworthy, exercise on earth the power of our
Lord and who seek with all our might to bring those sheep of His
flock who are outside, into the fold committed to our charge, con-
sider, however, that the Indians are truly men and that they are not
only capable of understanding the Catholic faith but, according to
our information, they desire exceedingly to receive it. Desiring to pro-
vide ample remedy for these evils, we define and declare by these our
letters, or by any translation thereof signed by any notary public and
sealed with the seal of any ecclesiastical dignitary, to which the same
credit shall be given as to the originals, that, notwithstanding what-
ever may have been or may be said to the contrary, the said Indians
and all other people who may later be discovered by Christians, are
by no means to be deprived of their liberty or the possession of their
property, even though they be outside the faith of Jesus Christ; and
that they may and should, freely and legitimately, enjoy their liberty
and the possession of their property; nor should they be in any way
enslaved; should the contrary happen, it shall be null and of no
effect.

Almost word for word, this declaration of human rights is re-echoed
in the first important law of the United States on Indian relations, the
Northwest Ordinance of 1787, adopted two years before the Federal Con-
stitution.56

Vitoria's doctrine of respect for Indian possessions became the guiding
principle of Spain's Laws of the Indies; the parallel promise of the North-
west Ordinance became the guiding principle of our federal Indian law.37

35. De Indis, 2, 7. Cf. Marshall, C. J., in Worcester v. Georgia, (1832) 6 Pet. 515:
"It is difficult to comprehend the proposition that the inhabitants of either quarter of
the globe could have rightful original claims of dominion over the inhabitants of
the other, or over the lands they occupied; or that the discovery of either by the
other should give the discoverer rights in the country discovered, which annulled the
pre-existing rights of its ancient possessors." (p. 543)

36. See supra p. 286.

37. See F. S. Cohen, "The Spanish Origin of Indian Rights in the Law of the United
States," [above, p. 230].

ORIGINAL INDIAN TITLE

Conquistadores, pirates, and even administrative officials sworn to obey
the law have not always adhered to this high principle. But if the prin-
ciple of respect for Indian possessions has not been applied at 100 per
cent of its face value, it has been applied at least to the extent that $800,-
000,000.00 or so of federal funds has so far been appropriated for the
purchase of Indian lands. To pay $800,000,000.00 for a principle is not
a common occurrence in the world's history, but in the long run this
impractical "long haired" expenditure has probably proved the wisest
investment the United States ever made.

Fair dealing by the Federal Government cemented the loyalty of In-
dians to the United States, a loyalty which has been an important factor
in every war we have fought, and as well in all our years of peace. Fair
dealing by the Federal Government assuaged the outrages committed on
Indians by their neighbors 3S and helped to preserve a people who, with-
out federal protection, might have succumbed to the rapacity of European
civilization. Each year Indian contributions to our economy run to many
times the amount we have paid the Indians for their lands, and the In-
dian contribution to our economy and our American way of life is far
from being exhausted. Though we owe to the Indian many of our sports,
recreations, highways, drugs, food habits, and political institutions,39 and
most of our agricultural staples,40 we have still to acquire from the In-
dian many skills and intangible resources that would be lost forever if
Indian cultures were forthwith destroyed, as many chauvinists advocate.41

It is against this historical background of fact and doctrine that the

38. "Because of the local ill feeling, the people of the States where they are found
are often their deadliest enemies." United States v. Kagama, (1886) 118 U.S. 375, 384.
Denial of the right of Indians to vote and receive social security benefits is found
today only in the two states most recently admitted to the Union, Arizona and New
Mexico. Efforts of the Federal Government to end these discriminations have met
much local hostility, as have federal efforts to protect native land rights in Alaska
where the frontier spirit still prevails. [Ed. note: In cases presented by Felix Cohen,
the Indians in Arizona and New Mexico subsequently won the right to vote and to
receive social security benefits. See Ed, note at the end of Note 3, p. 233 and see also
below, pp. 328-30.]

39. See the essay of Lucy M. Kramer on "Indian Contributions to American Culture,"
in Indians Yesterday and Today, (U.S. Dept. of Interior, 1941).

40. It has been estimated by competent authorities that four-sevenths of the total
agricultural production in the United States (in farm value) consists of plants do-
mesticated by Indians and taken over by whites, and it has been noted that where
the whites took over plants they also took over Indian method of planting, irrigation,
cultivation, storage, and use. See Edwards, Agriculture of the American Indian, (US.
Dept. of Agriculture, 1933) p. v; Bureau of American Ethnology, Bulletin No. 30, i, 25.

41. The 1890 Census Report on Indians, at p. 57, shows the high- water mark of
such chauvinism. See F. S. Cohen, "Indian Claims" [above, pp. 265-66].

291

THE INDIAN'S QUEST FOR JUSTICE

cases on Indian title must be viewed if they are to be understood. Only
against such a background is it possible to distinguish between those cases
that mark the norms and patterns of our national policy and those that
illustrate the deviations and pathologies resulting from misunderstanding
and corruption. It is perhaps inevitable that any high ideal should prove
too hard to live by in times of stress, but when a principle has survived
the stresses of many wars, financial panics, and outbreaks of chauvinism,
it becomes important to distinguish the basic principle from the "scatter-
ing" forces, just as it becomes important to distinguish in physics be-
tween the principle of gravitation and the deflecting forces of air fric-
tion, air pressure, terrestrial motion, etc., that make some bodies drop
slantwise or rise instead of dropping. Indeed, it is only with some under-
standing of the norms of institutional conduct that one can determine
whether the norms of the past are continuing to exert their influence, or
whether the deviations of yesterday will be the norms of tomorrow.

IV. THE CASES

The cases on original Indian title show the development across twelve
decades of a body of law that has never rejected its first principles. The
law of Indian title is thus particularly susceptible to historical analysis.
Ten cases fix its outlines.

i. The Sovereign's Title: Johnson v. Mclntosh.^

The first important Indian case decided by the Supreme Court estab-
lished the proposition that a private individual claiming title to land by
reason of a private purchase from an Indian tribe not consented to by
the sovereign, could not maintain that title against the United States or
its grantees, where the United States had acquired the land in question
from the Indians by treaty. The dismissal of the plaintiffs' complaint in
this case was not based upon any defect in the Indians' title, but solely
upon the invalidity of the Indian deed through which the white plaintiffs
claimed title. When the case was decided, the land (on the Wabash River)
had not been occupied by Indians for some fifty years. They had received
more than $55,000.00 for the land from the original vendees, Moses
Franks, Jacob Franks and their associates, they had then sold the same
land to the United States,43 and they had removed from the tract that
they had sold. At the time of the federal grant to the defendants, in

4*. (1823) 8 Wheat. 543.

43. Treaty of August 3, 1795, 7 Stat. 49; Treaty of June 7, 1803, 7 Stat. 74.

292

ORIGINAL INDIAN TITLE

1818, there was no Indian title to encumber the grant. The decision of
the court that a private sale of Indian lands not consented to by the
sovereign gave the purchaser no valid title against the sovereign, has
never been questioned in the years since this decision was rendered, nor
has there been any successful challenge of the rule which the court then
formulated, viz., that Indian title could be extinguished only by, or with
the consent of, the government. Justice Marshall's opinion in the case
makes it clear that while the sovereign could extinguish Indian title by
treaty or by war, Indian title would not be extinguished by a grant to
private parties and that such a grantee would take the land subject to
Indian possessory rights

. . . the rights of the original inhabitants were, in no instance,
entirely disregarded; but were necessarily, to a considerable extent,
impaired. They were admitted to be the rightful occupants of the
soil, with a legal as well as just claim to retain possession of it, and
to use it according to their own discretion; but their rights to com-
plete sovereignty, as independent nations, were necessarily dimin-
ished, and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the original fundamental
principle that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the
natives, as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in possession
of the natives. These grants have been understood by all to convey
a title to the grantees, subject only to the Indian right of occupancy.
(P- 574-)

It is perhaps Pickwickian to say that the Federal Government exercised
power to make grants of lands still in Indian possession as a consequence
of its "dominion" or "title." A realist would say that federal "dominion"
or "title" over land recognized to be in Indian ownership was merely a
fiction devised to get around a theoretical difficulty posed by common law
concepts. According to the hallowed principles of the common law, a
grant by a private person of land belonging to another would convey no
title. To apply this rule to the Federal Government would have produced
a cruel dilemma: either Indians had no title and no rights or the federal
land grants on which much of our economy rested were void. The Su-
preme Court would accept neither horn of this dilemma, nor would it
say, as a modern realist might say, that the Federal Government is not
bound by the limitations of common law doctrine and is free to dispose

293

THE INDIAN'S QUEST FOR JUSTICE

of property that belongs to Indians or other persons as long as such
persons are paid for their interests before their possession is impaired.
But such a way of putting the matter would have run contrary to the
spirit of the times by claiming for the Federal Government a right to
disregard rules of real property law more sacred than the Constitution
itself. And this theoretical dilemma was neatly solved by Chief Justice
Marshall's doctrine that the Federal Government and the Indians both
had exclusive title to the same land at the same time. Thus a federal grant
of Indian land would convey an interest, but this interest would not be-
come a possessory interest until the possessory title of the Indians was
terminated by the Federal Government. The Indians were protected. The
grantees were protected — assuming that the Federal Government went
ahead to secure a relinquishment of Indian title. The power of the
Federal Government was recognized. And the needs of feudal land tenure
theory were fully respected. Even if we are no longer interested in the
niceties of theory, the reconciliation of Indian rights and grantee rights
which Marshall worked out must command our respect.

2. Indian Title vs. Colony and State: Worcester v. Georgia**

The second great landmark in the law of Indian title is established by
Chief Justice Marshall's opinion in Worcester v. Georgia, where the land
involved in suit was in the present possession of Indians. The Supreme
Court in this case decided that the State of Georgia could not exercise
jurisdiction over Indian lands, i.e. that Indian title could not be ignored
by a state. The Chief Justice took great care to point out that neither
Johnson v. Mclntosh nor any other decision had denied the validity of
Indian title, and that the principle of sovereign title by "discovery" was
in no way inconsistent with Indian title.

This principle, acknowledged by all Europeans, because it was the
interest of all to acknowledge it, gave to the nation making the dis-
covery, as its inevitable consequence, the sole right of acquiring the
soil and of making settlements on it. It was an exclusive principle
which shut out the right of competition among those [Europeans]
who had agreed to it; not one which could annul the previous rights
of those who had not agreed to it. It regulated the right given by
discovery among the European discoverers; but could not affect the
rights of those already in possession, either as aboriginal occupants,
or as occupants by virtue of a discovery made before the memory of

44. (1832) 6 Pet. 515.

294

ORIGINAL INDIAN TITLE

man. It gave the exclusive right to purchase, but did not found that
right on a denial of the right of the possessor to sell. (p. 544)

Much of Chief Justice Marshall's opinion in this case may be dismissed
as unnecessary to the decision, and of course, strictly speaking, no opinion
or rule is ever logically necessary to any decision.45 But certainly an im-
portant step in the process by which the Supreme Court came to its deci-
sion in Worcester v. Georgia was the conclusion that when the Crown
gave to the Colony of Georgia whatever rights and powers the Crown
had in Cherokee lands, this did not terminate or alter the Cherokee Na-
tion's original title, which survived the Crown grant and later became
the basis of Cherokee treaties with the Federal Government. The case
thus stands squarely for the proposition adumbrated in Johnson v.
Mclntosh*6 that a grant by the sovereign of land in Indian occupancy
does not abrogate original Indian title.

3. The Transferability and the Scope of Indian Title:
Mitchel v. United States.47

Whereas Johnson v. Mclntosh had held that an unauthorized Indian sale
could not give a title superior to that later obtained by treaty, the case
of Mitchel v. United States dealt with the obverse situation where the
Indian sale relied upon had been made with the consent of the sovereign.
In such case, the Court held, the purchaser from the Indians secured a
title superior to any title which the United States could assert. The
United States, the Court held, could not acquire from the King of Spain
what was not the King's property, and the property of Indians or their
grantees could not become royal or government property without formal
judicial action.48 Indian property was no different in this respect from
the property of white men:

. . . One uniform rule seems to have prevailed from their first
settlement, as appears by their laws; that friendly Indians were
protected in the possession of the lands they occupied, and were
considered as owning them by a perpetual right of possession in the
tribe or nation inhabiting them, as their common property, from

45. See F. S. Cohen, Ethical Systems and Legal Ideals (1933), pp. 34-35.

46. (1823) 8 Wheat. 543, at 591.
47- (1835) 9 Pet. 711.

48. "If the king has no original right of possession to lands, he cannot acquire it
without office found, so as to annex it to his domain." 9 Pet. at 743.

*95

THE INDIAN'S QUEST FOR JUSTICE

generation to generation, not as the right of the individuals located
on particular spots.

Subject to this right of possession, the ultimate fee was in the
crown and its grantees, which could be granted by the crown or
colonial legislatures while the lands remained in possession of the
Indians, though possession could not be taken without their consent.
(9 Pet. 711, at 745)

What had been conceded, by way of dictum, in Johnson v. Mclntosh,
namely that Indian title included power to transfer as well as to occupy,
is the core of the decision in the Mitchel case.

Finally the Mitchel case clarifies the scope of the rule of respect for
Indian possessions by expressly rejecting the view that such possession
extended only to improved lands. Said the Court:

Indian possession or occupation was considered with reference to
their habits and modes of life; their hunting grounds were as much
in their actual possession as the cleared fields of the whites; and their
rights to its exclusive enjoyment in their own way and for their own
purposes were as much respected, until they abandoned them, made
a cession to the government, or an authorized sale to individuals.

(P- 745)

4. Indian Title vs. The Sovereign in Louisiana Territory:
Choteau v. MoZony.49

The Choteau case presents facts very similar to those in Johnson v.
Mclntosh,, and reaffirms the holding of that case that one who claims
under an unauthorized grant of Indian lands cannot prevail against a
grantee whose title is based upon an Indian treaty cession and a sub-
sequent federal grant. In the Choteau case, however, the plaintiff's in-
valid grant was not invalid because it lacked government consent. It was
invalid because it lacked Indian consent. The Court held that under the
Spanish law applicable in the Louisiana Territory the possessory rights of
the Fox Tribe of Indians in lands aboriginally occupied by them were
such that any grants made by the Spanish Governor would be "subject to
the rights of Indian occupancy. They would not take effect until that
occupancy had ceased, and whilst it continued it was not in the power of
the Spanish Governor to authorize anyone to interfere with it" (p. 239).
Thus the case recognizes, as did the Mitchel case, that even a king cannot
lawfully take possession of Indian lands without Indian consent.
49. (1853) 16 How. 203.

296

ORIGINAL INDIAN TITLE

5. Indian Titles vs. Homesteaders: Holden v. Joy.50

The contention that Indian lands are public lands subject to disposition
as such, a contention which the Court had squarely rejected in Worcester
v. Georgia, Mitchel v. United States, and Chateau v. Molony, was again
made, in a somewhat novel guise, in Holden v. Joy, and was again re-
jected by the Court. In this case the defendant, Joy, claimed under cer-
tain Indian treaties, while the plaintiff, Holden, claimed under preemp-
tion acts of Congress. On behalf of the plaintiff's claim it was argued that
the Constitution expressly vests in Congress control over public property
and that a series of treaties made by the President and Senate with Indian
tribes could not constitutionally dispose of public land to the defendant
in a manner that conflicted with modes of public land disposition pre-
scribed by Congress and availed of by the plaintiff. The Court, in re-
jecting that argument, and holding for the defendant, pointed out that
the occupancy right in the land in question had been in the Indians
from the start and was therefore clearly subject to disposition by Indian
treaties.

In upholding the Indian title as a proper subject of treaty-making, the
Court characterized aboriginal title in these terms:

Enough has already been remarked to show that the lands con-
veyed to the United States by the treaty were held by the Cherokees
under their original title, acquired by immemorial possession, com-
mencing ages before the New World was known to civilized man.
Unmistakably their title was absolute, subject only to the preemp-
tion right of purchase acquired by the United States as the successors
of Great Britain, and the right also on their part as such successors
of the discoverer to prohibit the sale of the land to any other gov-
ernments or their subjects, and to exclude all other governments
from any interference in their affairs, (p. 244)

6. Indian Title and Railroad Grants: Buttz v. Northern
Pacific Railroad.51

Buttz v. Northern Pacific R.R. is the first of the railroad grant cases in
which the principles enunciated in Johnson v. Mclntosh and Worcester
v. Georgia were applied to the transcontinental railroads that sought

50. (1872) 17 Wall. (84 US.) 411.

51. (1886) 119 U.S. 55.

*97

THE INDIAN'S QUEST FOR JUSTICE

passage across Indian lands. Notwithstanding the vital importance of
these railroads for the expanding national economy, and the strong
legislative backing which the railroads commanded, Congress when it
gave millions of acres of public land to the railroads in aid of construc-
tion scrupulously respected Indian possessions, whether or not such pos-
sessions had been defined by treaty or act of Congress. The statutory grant
in the Buttz case52 safeguarded Indian rights in these words: "The
United States shall extinguish, as rapidly as may be consistent with public
policy and the welfare of the said Indians, the Indian titles to all lands
falling under the operation of this act, and acquired in the donation to
the [road] named in this bill." Other railroad grants even went so far as
to provide expressly that such extinguishment of Indian title should be
effected only by "voluntary cession." 53

The interpretation of these grants in the Buttz case and succeeding
cases adhered to the principle that while a grant of land in Indian pos-
session may convey a legal fee, such a grant does not impair the Indian
title, which the grantee must respect until it has been duly terminated
by treaty, agreement, or other authorized action of Congress or the In-
dians. Applying this rule in the Buttz case meant that the title originally
conveyed to the railroad by the Congressional grant of 1864 and per-
fected by Indian relinquishment of the land in 1873, for an agreed com-
pensation, prevailed over a settler's preemption title under the act of
September 4, 1841, 5 Stat. 453, alleged to have been perfected by actual
settlement in 1871. The basis of the Court's decision lay in the deter-
mination that "At the time the act of July 2, 1864, was passed the title
of the Indian tribes was not extinguished" (p. 66), that this was still the
situation in 1871, and that, "The grant conveyed the fee subject to this
right of occupancy" (ibid.).

It is to be noted that the Indians' right of occupancy in 1864 had not
yet been defined by any treaty. In 1867 a reservation was set aside for
the Indians involved, but the Court noted that this did not of itself wipe
out aboriginal possessory rights outside of the reservation. The aboriginal
Indian title in the area involved in the Buttz case never was defined in
any treaty or agreement until the agreement of 1873 by which the land
was ceded to the United States. The Buttz case stands, therefore, as a
clear warning that neither settlers nor railroads can ignore aboriginal
Indian title.

52. Act of July 2, 1864, 13 Stat. 365, sec. 2.

53. Act of July 27, 1866, 14 Stat. 292, construed in United States v. Santa Fe Pacific
Ry. Co., (1941) 314 U.S. 339, considered supra note u

ORIGINAL INDIAN TITLE

7. Individual Indian Titles vs. The Railroads:
Cramer v. United States.5*

The Cramer case, which has already been discussed,55 is important in
the development of the law of Indian title in two respects: (i) it estab-
lishes the proposition that individual and tribal possessory rights are
entitled to equal respect, and (2) it qualifies the suggestion in the Buttz
case (p. 71) that "Indians having only a right of occupancy" do not have
such "claims and rights" as suffice to exclude lands entirely from a public
grant.56 In the Buttz case this dictum was entirely justified since the
grant act in question provided that the Indian possession should not be
disturbed by a grant of naked legal title. But where, as in the Cramer
case, there was no such express guaranty, the only way to protect the
Indian title was to hold that land under Indian title was wholly ex-
cluded from the grant. And this the Court did. Taken together, the Buttz
and Cramer cases hold that Indian title survives a railroad grant, either
as an encumbrance upon the grant (Buttz) or as an exception carved out
of it (Cramer). In either case the grantee cannot interfere with the In-
dian title.

8. The Scope of Indian Title: United States v.
Shoshone Tribe.57

Whether original Indian title comprises all elements of value attached to
the soil or whether such title extends only to such surface resources as
the Indians knew and used was the central question decided in the
Shoshone case. While the case involved a treaty, the treaty was silent on
the question of whether the "lands" which were reserved to the Indians
included the timber upon, and the minerals below, the surface. The argu-
ment of the case therefore turned primarily on the extent of the Indian
tenure prior to the treaty. The Government, represented by Solicitor
General Reed, argued that the Shoshones had a mere right of occupation,
which was "limited to those uses incident to the cultivation of the land
and the grazing of livestock," and that the Government had an "absolute

54. (1923) 261 U.S. 219.

55. See supra pp. 274-77.

56. This dictum provided the main line of argument for the railroad in the Cramer
case. See 261 U.S. 219, 220.

57- (1938) 3<>4 U.S. in.

299

THE INDIAN'S QUEST FOR JUSTICE

right to reserve and dispose of the [other] resources as its own." 58 This
view was further developed in the Government's main brief, signed by
Solicitor General Jackson, urging that original Indian title was something
sui generis, comprising only a "usufructuary right," and that such right
"to use and occupy the lands did not include the ownership of the
timber and mineral resources thereon." 59 This view was considered and
rejected by the Court, Mr. Justice Reed dissenting.60 The Court took the
view that original Indian title included every element of value that
would accrue to a non-Indian landowner. It concluded that the treaty did
not cut down the scope of the title of the Indians, "undisturbed posses-
sors of the soil from time immemorial/' and declared:

For all practical purposes, the tribe owned the land. . . . The
right of perpetual and exclusive occupancy of the land is not less
valuable than full title in fee. . . .

Although the United States retained the fee, and the tribe's right
of occupancy was incapable of alienation or of being held other-
wise than in common, that right is as sacred and as securely safe-
guarded as is fee simple absolute title. Cherokee Nation v. Georgia,
5 Pet. i, 48. Worcester v. Georgia, supra, 580. Subject to the condi-
tions imposed by the treaty, the Shoshone Tribe had the right that
has always been understood to belong to Indians, undisturbed pos-
sessors of the soil from time immemorial, (pp. 116-117)

At the same session of court the Supreme Court applied the identical
rule, in the case of the Klamath Indians,61 to Indian ownership of timber.
The Klamath and Shoshone cases, taken together, overturned prevailing
views as to the ownership of timber on Indian reservations. Earlier de-
cisions of the Supreme Court in United States v. Cook,62 and Pine River
Logging Co. v. United States?* to the effect that the Federal Government
could replevin logs sold without authority or recover the value thereof,

58. Brief for United States on petition for certiorari.

59. Brief for United States, pp. 7-24.

60. While Mr. Justice Reed was the sole dissenter from the decision in the Sho-
shone case, he was joined by Justices Burton and Rutledge in a more recent dissent,
involving substantially the same contention that Indians are "like paleface squatters
on public lands without compensable rights if they are evicted." United States v.
Tillamooks, (1946) 329 U.S. 40, 58.

61. United States v. Klamath Indians, (1938) 304 U.S. 119; same case, (1935) 296
U.S. 244-

62. (1873) 19 Wall. 591.

63. (1902) 186 U.S. 279.

300

ORIGINAL INDIAN TITLE

had been widely misconstrued as a denial of Indian rights to timber.64
When this misinterpretation was set at rest in the Shoshone and Klamath
cases, Congress ordered that the proceeds of the judgment in the Pine
River case, which had been deposited to the credit of the Government,
should be transferred to the credit of the Indians.65 These two decisions
delivered a death blow to the argument that aboriginal ownership extends
only to products of the soil actually utilized in the stone age culture of
the Indian tribes.

9. Indian Title vs. Administrative Officials: United States as
Guardian of Hualpai v. Santa Fe Pacific Railroad Co.66

The main facts and the issues of the Walapai case have already been
noted.67 The significance of the case in the development of the law of
Indian title lies not in the recognition that Indian title does not depend
upon treaties nor even in the fact that the doctrine of original Indian
title was applied to the Mexican cession area — both principles are estab-
lished in earlier decisions, e.g. in the Cramer case. More important is the
fact that the aboriginal occupancy of an Indian tribe was here held to
have survived a course of congressional legislation and administrative
action that had proceeded on the assumption that the area in question
was unencumbered public land. The decision thus stands as a warning
to purchasers of real property from the Federal Government, reminding
them that not even the Government can give what it does not possess.

10. Indian Title vs. The Federal Government: United States v.
Alcea Band of Tillamooks.68

The last large gap in the doctrine of original Indian title was filled in by
the Supreme Court's decision in the Alcea case, holding that the Federal
Government was bound to pay the Indians when it took from them lands
which they held under aboriginal ownership.69 While the disagreements

64. See 29 Op. Att'y Gen. 239 (1911). And see F. S. Cohen, Handbook of Federal
Indian Law, pp. 313-16. The Government's brief in the Shoshone case, incorporated
by reference in its Klamath brief, placed chief reliance upon this interpretation of
the Cook and Pine River Logging Co. cases.

65. Act of June 5, 1938. 52 Stat. 688.

66. (1941) 314 US. 339.

67. See supra pp. 277-78.

68. (1946) 329 U.S. 40, aff'g (1945) 103 Ct. Cls. 494, 59 F. Supp. 934.

69. That no such liability arises when land not subject to original Indian title is
set aside temporarily for Indian use and then restored to the public domain is the

301

THE INDIAN'S QUEST FOR JUSTICE

that split the Court three ways in its opinion-writing make it dangerous
to rely on anything the Court said in this case, the fact stands out that
the United States, after taking land, by Congressional act, from Indians
who had nothing more than an unrecognized aboriginal title to it, was
required, by a five to three vote of the Supreme Court, to pay the Indians
the value of the land so taken. Certainly it can make no difference to
the Indians in the case whether, as Justice Black thought, they are to be
paid because Congress passed a jurisdictional act allowing them to bring
suit, or, as the four other justices in the majority thought, and as the
Court of Claims thought, because the action of Congress a century ago
established a liability which only came before the Court for adjudication
in 1947. The question of whether rights depend upon remedies or vice
versa is a metaphysical issue on which lawyers have disagreed for at least
two thousand years, and it is scarcely likely that unanimity will be reached
in the next two thousand years. As long as the Indian gets paid for
aboriginal holdings that the government takes from him, he will not
quibble about the reasons assigned for the decision.70

The difference between Justice Black's formulation of the rule of
liability and that of the other four justices of the majority is not likely
to affect any actual decisions.71 The Indian Claims Act of August 13,

holding of two recent cases. Sioux Tribe v. United States, (1942) 316 U.S. 317; Ute
Indians v. United States, (1947) 330 U.S. 169. The language and circumstances of the
Executive orders setting up Indian reservations vary so widely that generalizations
from cases interpreting such orders are of little value. See F. S. Cohen, Handbook of
Federal Indian Law, pp. 299-302.

70. The meaning of the decision, from the standpoint of actual administration, is
thus set forth in the statement of Commissioner of Indian Affairs William A. Brophy:

"The Supreme Court has now held that original Indian title — even though not ac-
companied by notary seals and ribbons — is as good as any white man's title. It is good
against the United States as well as against third parties. Under recent legislation
opening the courts to Indian grievances, the Indians are held entitled to recover the
value of any land that has been taken away from them by the Goverment. This means
the end of a long-standing discrimination which made Indian land in the old days
a prey to all sorts of land-grab schemes and denied the Indians any redress or com-
pensation. It is the duty of all employees of the Office of Indian Affairs to see that
Indian land ownership is respected to the same degree as any other form of land
ownership. As the Supreme Court has said, whether a tract of land 'was properly
called a reservation ... or unceded Indian country ... is a matter of little moment
... the Indians' right of occupancy has always been held to be sacred; something
not to be taken from him except by his consent, and then only upon such consideration
as should be agreed upon/"

71. It did affect the decision in Northwestern Bands of Shoshone Indians v. United
States, (1945) 324 U.S. 335. There a majority of the Court thought that the jurisdic-
tional act did not authorize a suit based on aboriginal title. A four-way split in the

302

ORIGINAL INDIAN TITLE

1946 72 establishes a special forum to hear Indian claims and among the
claims assigned to this forum for determination are claims based upon
a taking of land held under original Indian title.73 The same act also
provides for future determination of similar claims by the Court of
Claims.74 Since all five members of the majority in the Alcea case agreed
that the combination of (i) an uncompensated taking, and (2) a proper
jurisdictional act, jointly, provided a basis for recovery, and since the
second condition has been satisfied by general legislation, it follows that,
under the Alcea decision, if there has been an uncompensated taking, a
recovery may now be had. For reasons already noted, the areas within
which such recoveries may be had are nowhere near as great as has been
commonly supposed, even by some of the Supreme Court justices when
they comment upon matters not of record in the case before them.75

The Alcea case gives the final coup de grace to what has been called the
"menagerie" theory of Indian title,76 the theory that Indians are less
than human and that their relation to their lands is not the human rela-
tion of ownership but rather something similar to the relation that
animals bear to the areas in which they may be temporarily confined.
The sources of this "menagerie" theory are many and varied and some-
times elegantly pedigreed. There is the feudal doctrine, which has seldom
been heard in this country for a century or so except in Indian cases,
that ultimate dominion over land rests in the sovereign. There is the
echoing of a doctrine that taking land from another nation by the sword
creates no justiciable rights — a doctrine that might have been proper
enough when the United States was waging war or making treaties with
the various Indian tribes, but is hardly relevant to the contemporary
scene, when all Indians are citizens and when Congress has provided that
these citizens should be fully compensated for confiscated lands that they

Court produced an affirmance of the decision of the Court of Claims below, denying
recovery. The limitations of the Shoshone jurisdictional act have now been superseded
by the Indian Claims Act, which was passed, very largely, to overcome the injustices
which resulted from the Shoshone decision, injustices pointed out by two of the
justices (Black and Jackson, JJ.) voting with the majority in that case. The Senate
and House Committees which asked the Supreme Court to allow the Indians a re-
hearing in this case, and were refused, saw to it that the Indian Claims Act allowed
such rehearings in all cases heretofore dismissed for jurisdictional reasons. See F. S,
Cohen, "Indian Claims" [above, p. 264]. And see K. J. Selander, "Section 2 of the
Indian Claims Commission Act," (1947) 15 Geo. Wash. L. Rev. 388, 422.

72. (1946) 60 Stat. 1049, 25 U.S.CA. (1946 Supp.) 70.

75. See sec. 2, 60 Stat. 1049, i°5°» 25 U.S.C.A. (1946 Supp.) 7oa.

74. See sec. 24, 60 Stat. 1049, 1055, 28 U.S.CA. (1946 Supp.) 2593. •

75. See note 13 supra.

76. See F. S. Cohen, Handbook of Federal Indian Law, p. 288,

3°3

THE INDIAN'S QUEST FOR JUSTICE

would own today if the Federal Government had carried out the "fair
and honorable dealings" that it first pledged in 1787.

There are other subtler sources of the "menagerie" theory of Indian
reservations which are seldom set forth in legal briefs but exert a deep
influence on public administration. One of the most insidious of these
is the doctrine that the only good Indian is a dead Indian, whence it
follows, by frontier logic, that the only good Indian title is one that has
been extinguished, through transfer to a white man or a white man's
government. And finally there is the more respectable metaphysical doc-
trine that since government is the source of all rights there are no rights
against the government, from which it may be deduced that Indians who
have been deprived of their possessions by governmental action are with-
out redress. All these doctrines, it may be hoped, have been finally con-
signed to the dust bins of history by the course of decisions of the Su-
preme Court that cumulates in the Alcea case.

That course of decisions now fully justifies the statement made by
President Truman some months before the Alcea decision was handed
down, on the occasion of his signing the Indian Claims Act on August
13, 1946:

This bill makes perfectly clear what many men and women, here
and abroad, have failed to recognize, that in our transactions with
the Indian tribes we have at least since the Northwest Ordinance of
1787 set for ourselves the standard of fair and honorable dealings,
pledging respect for all Indian property rights. Instead of confiscat-
ing Indian lands, we have purchased from the tribes that once
owned this continent more than 90 per cent of our public domain,
paying them approximately 800 million dollars in the process. It
would be a miracle if in the course of these dealings — the largest real
estate transaction in history — we had not made some mistakes and
occasionally failed to live up to the precise terms of our treaties and
agreements with some 200 tribes. But we stand ready to submit all
such controversies to the judgment of impartial tribunals. We stand
ready to correct any mistakes we have made.

304

Indian Self-Government

NOT ALL who speak of self-government mean the same thing by the term.
Therefore let me say at the outset that by self-government I mean that
form of government in which decisions are made not by the people who
are wisest, or ablest, or closest to some throne in Washington or in
Heaven, but, rather by the people who are most directly affected by the
decisions. I think that if we conceive of self-government in these matter-
of-fact terms, we may avoid some confusion.

Let us admit that self-government includes graft, corruption, and the
making of decisions by inexpert minds. Certainly these are features of
self-government in white cities and counties, and so we ought not to be
scared out of our wits if somebody jumps up in the middle of a discussion
of Indian self-government and shouts "graft" or "corruption."

Self-government is not a new or radical idea. Rather, it is one of the
oldest staple ingredients of the American way of life. Many Indians in
this country enjoyed self-government long before European immigrants
who came to these shores did. It took the white colonists north of the Rio
Grande about 170 years to rid themselves of the traditional European
pattern of the divine right of kings or, what we call today, the long arm
of bureaucracy, and to substitute the less efficient but more satisfying
Indian pattern of self-government. South of the Rio Grande the process
took more than three centuries, and there are some who are still skeptical
as to the completeness of the shift.

This is not the time and place to discuss the ways in which the Indian
pattern of self-government undermined the patterns which the colonists
first brought to this country, patterns of feudalism, landlordism and
serfdom, economic monopoly and special privilege, patterns of religious
intolerance and nationalism and the divine right of kings. It was not
only Franklin and Jefferson who went to school with Indian teachers, like
the Iroquois statesman Canasatego, to learn the ways of federal union and
democracy. It was no less the great political thinkers of Europe, in the
years following the discovery of the New World, who undermined ancient

Published in The American Indian, 1949.

3°5

THE INDIAN'S QUEST FOR JUSTICE

dogmas when they saw spread before them on the panorama of the
Western Hemisphere new societies in which liberty, equality, and frater-
nity were more perfectly realized than they were realized in contem-
porary Europe, societies in which government drew its just powers from
the consent of the governed. To Vitoria, Grotius, Locke, Montaigne,
Montesquieu, Voltaire, and Rousseau, Indian liberty and self-government
provided a new polestar in political thinking. But, for the present, I
want merely to emphasize that Indian self-government is not a new or
radical policy but an ancient fact. It is not something friends of the In-
dians can confer upon the Indians. Nobody can grant self-government to
anybody else. We all recall that when Alexander was ruler of most of the
known civilized world, he once visited the philosopher Diogenes, who
was making his home in an old bathtub. Diogenes was a rich man because
he did not want anything that he did not have. He was a mighty man be-
cause he could master himself. Alexander admired Diogenes for these
qualities, and standing before him said, "Oh, Diogenes, if there is any-
thing that I can grant you, tell me and I will grant it." To which Diogenes
replied, "You are standing in my sunlight. Get out of the way." The
Federal Government which is, today, the dominant power of the civilized
world cannot give self-government to an Indian community. All it can
really do for self-government is to get out of the way.

In the history of Western thought, theologians, missionaries, judges,
and legislators for 400 years and more have consistently recognized the
right of Indians to manage their own affairs. Nothing that we could say
today in defense of Indian rights of self-government could be as eloquent
as the words of Francisco de Vitoria in 1532 or of Pope Paul III in 1537
or of Bartholomew de las Casas in 1542 or of Chief Justice Marshall in
1832. For 400 years, men who have looked at the matter without the
distortions of material prejudice or bureaucratic power have seen that
the safety and freedom of all of us is inevitably tied up with the safety
and freedom of the weakest and the tiniest of our minorities. This is not
novel vision but ancient wisdom.

What gives point to the problem in 1949 is that after 422 years of
support for the principle of Indian self-government, in the thinking of
the western world, there is so little Indian self-government. Here we
have, I think, the main problem on which I should like to throw the light
of a few concrete examples and incidents.

I recall very vividly in 1934 working on a study for the Indian Office
of legal rights of Indian tribes which was to serve as a guide in the draft-
ing of tribal constitutions under the Wheeler-Howard Act. I found that

306

INDIAN SELF-GOVERNMENT

the laws and court decisions clearly recognized that Indian tribes have
all the governmental rights of any state or municipality except in so far
as those rights have been curtailed or qualified by Act of Congress or by
treaty, and such qualifications are relatively minor, in fact. When, at
last, my job was done and the Solicitor's opinion had been reviewed and
approved by the proper authorities of the Interior Department and
properly mimeographed, I learned to my dismay that all copies of the
opinion in the Indian Office had been carefully hidden away in a cabinet
and that when an Indian was found reading this opinion, the copy was
forthwith taken from his hands and placed under lock and key. In-
cidentally, the Indian whose reading was thus interrupted had spent
more years in school and college than the men who controlled the lock
and key. The Indian Office was sure that the opinion, if released to the
public, would be most disturbing. I suppose they were right. The opinion
was disturbing to the Indian Office. Its suppression was equally disturbing
to me. My despondency was somewhat relieved when I found that Chief
Justice Marshall and Pope Paul III and Bartholomew de las Casas had
all received the same treatment. It was of John Marshall's decision up-
holding the rights of self-government of the Cherokee Tribe that an old
Indian fighter in the White House, President Jackson, said, "John Mar-
shall has made his decision. Now let him enforce it." The sovereign
State of Georgia paid no attention to the decision of the United States
Supreme Court and the good missionary whom the Supreme Court had
freed continued to languish in a Georgia prison. And what happened to
John Marshall in 1832 was not novel. The same thing happened to
Bartholomew de las Casas 300 years earlier when, as Archbishop of
Chiapas, he endeavored to read to his flock of Spanish landowners the
guarantees of Indian freedom signed by the Pope and by the King of
Spain. He was not allowed to read these documents by the outraged land-
owners of his archdiocese. In fact, he was driven from his church. History
has a strange way of repeating itself. I was relieved to find myself in such
good company, and so, instead of resigning, I distributed copies of the
opinion where I thought they would do the most good.

How can we explain the fact that despite all the respect and reverence
shown to the principle of Indian self-government across four centuries,
there is so little left today of the fact of Indian self-government? How
can we explain this discrepancy between word and deed?

The simplest explanation, of course, and the one that is easiest for
simple, unsophisticated Indians to understand is the explanation in terms
of white man's hypocrisy.

3°7

THE INDIAN'S QUEST FOR JUSTICE

I think we must go deeper into the wellsprings of human conduct and
belief to understand what is happening in the field of Indian self-gov-
ernment and to relate facts to words.

Double-talk is not always a sign of hypocrisy. Probably the easiest way
of maintaining consistency in our principles is to have a second-string
substitute vocabulary to use in describing any facts that do not fit into
the vocabulary of our professed principles. Thus, if we believe in liberty
and find that some particular exercise of liberty is annoying, we may call
that license, rather than liberty. So it is possible to talk about the virtues
and values of self-government without allowing this talk to influence our
conduct in any way, if we have a substitute vocabulary handy which will
permit us to dismiss the appeal for self-government in any concrete case,
without using the term "self-government." The second vocabulary to
which professed believers in self-government continually turn when con-
crete cases arise is the vocabulary that talks about "a state within a state,"
"segregation," and, in the words of the Hoover Report, "progressive
measures to integrate the Indians into the rest of the population as the
best solution of 'the Indian problem/ "

There are two answers to this double-talk: One is to deny the cliches
and to insist that there is nothing wrong about having a state within a
state; that, in fact, this is the whole substance of American federalism and
tolerance. We may go on to say that the right of people to segregate them-
selves and to mix with their own kind and their own friends, is a part of
the right of privacy and liberty, and that the enjoyment of this right, the
right to be different, is one of the most valuable parts of the American
way of life. We may say further that it is not the business of the Indian
Bureau or of any other federal agency to integrate Indians or Jews or
Catholics or Negroes or Holy Rollers or Jehovah's Witnesses into the rest
of the population as a solution of the Indian, Jewish, Negro, or Catholic
problem, or any other problem; but that it is the duty of the federal gov-
ernment to respect the right of any group to be different so long as it
does not violate the criminal law.

Apart from this challenging of cliches, there is a second cure for the
habit of double-talk in our discussions of Indian self-government. That
remedy is to reject what Stuart Chase called "the tyranny of words" and
to think facts.

The great American philosopher, Ralph Barton Perry, coined the
phrase, "the egocentric predicament" to call attention to the fact that each
of us is at the center of his world and cannot help seeing the world
through his own eyes and from his own position. It takes a certain amount
of sophistication to realize that the vision of others who see the world

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INDIAN SELF-GOVERNMENT

from different perspectives is just as valid as our own. One of the striking
features of the administrative or bureaucratic mind is that it lacks such
sophistication. Thus, it often turns out that the officials who have most
to say in praise of Indian self-government have a certain blind spot where
Indian self-government comes close to their own activities.

I recall that when we were helping Indians draft the constitutions and
charters which were supposed to be the vehicles of self-government under
the Wheeler-Howard Act, all of the Indian Bureau officials were very
strongly in favor of self-government, and in favor of allowing all tribes
to exercise to the full extent their inherent legal rights. There was only
one difficulty. The people of the Education Division were in favor of
self-government in forestry, credit, leasing, law and order, and every
other field of social activity except education. Of course, education, they
thought, was a highly technical matter in which tribal council politics
should have no part. Education should be left to the experts, according
to the experts, and the experts were to be found in the Education Divi-
sion. Similarly, with the Forestry Division. They were all in favor of self-
government with respect to education, credit, agricultural leases, law and
order, and everything else except for forestry. Forestry, of course, in-
volved matters of particular complexity and difficulty in which the experts
ought to make the decisions, and the experts, of course, were to be found
in the Forestry Division. So it was with the Credit Section, the Leasing
Section, the Law and Order Division, and all the other divisions and
subdivisions of the Indian Bureau. The result was that while every
official was in favor of self-government generally, by the same token he
was opposed to self-government in the particular field over which he had
any jurisdiction. In that field he could see very clearly the advantages of
the expert knowledge which he and his staff had accumulated, and the
disadvantages of lay judgment influenced by so-called political considera-
tions which would be involved in decisions of local councils.

Those of us in the Department who had been given a special responsi-
bility for protecting Indian tribal self-government finally went to the
Commissioner and pointed out that if we followed the traditional prac-
tice of yielding to each expert division on the matters with which it was
concerned, there would be no Indian self-government. There was a long
and bloody argument and eventually the Commissioner upheld the prin-
ciple which is now written into most Indian tribal charters, that the In-
dians themselves, at some point or other, may dispense with supervisory
controls over most of their various activities. Some of the charters include
a special probationary period of five years or ten years, during which
leases and contracts are subject to Departmental control. In many cases,

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particularly among the Oklahoma tribes, this period has terminated and
the Indians are free, if they choose to do so, to make their own leases and
contracts and various other economic decisions without Departmental
control. That, at least, is what the charters and constitutions say.

Yet I must add that instances have been called to my attention where
decisions and ordinances that were not supposed to be subject to review
by superintendents or by the Commissioner of Indian Affairs have been
rescinded or vetoed by these officials. Tribes without independent legal
guidance frequently acquiesce in such infringements upon their con-
stitutional and corporate powers. Thus many of the gains of the Roosevelt
era are being chipped away.

Let me give one more instance of the egocentric predicament in action.
A certain Southwestern superintendent recently wrote an eloquent article
in defense of Indian self-government, and in support of the idea that the
Indian Bureau should work itself out of its job. A few weeks later some
of the tribes under his jurisdiction decided that they needed legal assist-
ance and proceeded to employ attorneys to help them handle their own
leasing, grazing and social security problems. At this point all sorts of
reasons began to occur to the superintendent why the tribes under his
agency should not be allowed to select their own attorneys. In fact, for
many months, as fast as one of his objections was met another objection
occurred to him.

Here is a superintendent who is doing the best thing, as he sees it, for
his Indians. He is, I believe, entirely sincere. Recently he explained that
if one of these attorney contracts were approved he would be out of a
job, so far as this particular tribe was concerned. Now you will recall that
this is the same superintendent who wrote an article urging that the In-
dian Bureau work itself out of a job. But when the matter came to an
issue in concrete terms affecting his own job, he saw the question in a
different light. That is only human. That is a part of the egocentric pre-
dicament. And it is that predicament which makes the adherents and
defenders of self-government so much more dangerous to the cause of In-
dian self-government than any outright adversaries. If self-government
were a man it might repeat, "God preserve me from my friends. I can
take care of my enemies."

Unfortunately, it is not the tribal decisions which we agree with that
test our belief in the right of self-government. It is decisions that we
loathe and believe to be fraught with death that test our beliefs in tribal
self-government, just as it is religious opinions, that we loathe and be-
lieve to be fraught with death that test our. belief in religious tolerance.
But it takes a vast amount of sophistication or philosophy to say what

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INDIAN SELF-GOVERNMENT

Justice Holmes once said, "I think we should be eternally vigilant against
attempts to check the expression of opinion that we loathe and believe to
be fraught with death/' Allowing others to express opinions we agree
with is no test at all of our belief in free speech. To quote again from
Justice Holmes: "But when men have realized that time has upset many
fighting faiths, they may come to believe even more than they believe in
the very foundations of their own conduct, that the ultimate good desired
is better reached by free trade in ideas."

May we not profit, may not the world profit, if in a few places in our
Western Hemisphere there is still freedom of an aboriginal people to try
out ideas of self-government, of economics, of social relations, that we
consider to be wrong? After all, there are so many places all over the
world where we Americans can try out the ideas of economics and gov-
ernment that we know to be right. Is there not a great scientific advantage
in allowing alternative ideas to work themselves out to a point where
they can demonstrate the evils that we believe are bound to flow from a
municipal government that maintains no prisons, or from a government
that gives land to all members of the group who need it? Are we not
lucky that the areas within which these governmental ideas can work
from themselves out are so small that they cannot possibly corrupt the
nation or the world?

Indeed, is there not a possibility that we can learn from example —
horrible examples, perhaps, or perhaps examples to be emulated? Have
we not been learning from Indian examples for a good many years? Have
we not been taking over all sorts of horrifying Indian customs, disrespect
for kings and other duly appointed authorities, the smoking of poisonous
weeds, like tobacco, and the eating of poisonous plant products, like
tomatoes, potatoes, tapioca, and quinine, not to mention cocoa and
cocaine? Of course, we must all of us start with the assumption that we
are right or as near being right as we can be. But can we not also rec-
ognize, with Justice Holmes, that time has upset many fighting faiths,
and that even if we are possessed of absolute truth it is worthwhile to
have somebody somewhere trying out a different idea?

Just as serious as the habit of double-talk or the egocentric predicament
is the method of procrastination as a way of avoiding the concrete implica-
tions of Indian self-government. On May 20, 1834, not 1934 but 1834, the
House Committee on Indian Affairs reported that a large part of the
activity of the Indian Bureau was being carried on in violation of law
and without any statutory authority. It urged that the Indian Bureau
work itself out of a job by turning over the various jobs in the Bureau
itself to the Indians and by placing the Indian Bureau employees on the

THE INDIAN'S QUEST FOR JUSTICE

various reservations under the control of the various Indian tribes. These
recommendations were written into law. They are still law. The justice
of these recommendations has not been challenged for 115 years. But
always the answer of the Indian Bureau is: Give us more time. We must
wait until more Indians have gone to college, until the Indians are rich,
until the Indians are skilled in politics and able to overlook traditional
jealousies, until the Indians are experts in all the fields in which the
Indian Bureau now employs experts. But we are never told how the In-
dians are to achieve these goals without participation in their own gov-
ernment. And so perhaps some of us are entitled to look with a skeptical
eye upon the new legislative proposals by which the Indian Bureau is
to work itself out of a job after the usual interim 10 year or 20 year
period of increased appropriations.

What provokes skepticism is the fact that the various bills which are
being introduced into Congress to achieve this objective generally end
up by giving new powers and new millions of dollars not to the Indian
tribal councils but to the Indian Bureau. And when we find that specific
dates are not attached to any promised transfers of power to the tribes,
we are entitled to be skeptical. The record shows that for more than one
hundred years the aggrandizement of Indian Bureau power has been
justified on the ground that this was merely needed for a brief temporary
period until authority could be conveyed over to the Indians themselves.

Indian Bureau government, like other forms of colonialism, starts
from the basic premise that government is a matter of knowledge or wis-
dom. If we accept this basic premise, there is no answer to the aristocratic
argument of Alexander Hamilton that government should be handled
by the rich, the well born, and the able. If it be said that rich people
and well born people are not necessarily able, the obvious answer is that
those who are rich or well born are at least more likely to have expert
knowledge, training, and experience than those who are poor or the
children of poor families, and that in government we must proceed by
general rules, under which it is safe to say that the rich, the well born,
and the able will do a more expert job than others in the posts of gov-
ernment. One of the greatest of our Secretaries of the Interior, also, like
Hamilton, an immigrant from lands that worshipped empire, Carl Schurz,
once said to an Indian group that was inclined to object to the activities
of some local agency personnel: "The Great Father is a very wise man. He
knows everything. If there is anything wrong with your agent, he will
know it before either you or I know it."

I think that if government were merely a matter of wisdom and expert

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INDIAN SELF-GOVERNMENT

knowledge, the argument of Carl Schurz and Alexander Hamilton would
be irrefutable. The answer to Schurz and to Hamilton is that govern-
ment is not a science; it is not primarily a matter of wisdom or technique
or efficiency. Government is a matter chiefly of human purpose and of
justice, which depends upon human purpose. And each of us is a more
faithful champion of his own purposes than any expert. The basic prin-
ciple of American liberty is distrust of expert rulers, and recognition, in
Acton's words, that power corrupts and that absolute power corrupts
absolutely. That is why America, despite all the lingo of the administra-
tive experts, has insisted upon self-government rather than "good gov-
ernment/' and has insisted that experts should be servants, not masters.
And what we insist upon in the governing of these United States, our
Indian fellow-citizens also like to enjoy in their limited domains: the
right to use experts when their advice is wanted and the right to reject
their advice when it conflicts with purposes on which we are all our own
experts. The classical answer to the Hamilton-Schurz-Indian Bureau phi-
losophy of "expert government" is the answer given by Thomas Jefferson
in a letter to the Cherokee Indians in 1808. Jefferson said: "The fool has
as great a right to express his opinion by vote as the wise, because he is
equally free and equally master of himself."

Recently I heard repeated the words of Nazi Admiral Doenitz, as he
faced his judges at the conclusion of the Nuremberg Trial. The prin-
ciple of expert leadership, he said, had proved itself in the armed forces
as a principle of efficiency. It seemed to him that the same principle
would prove itself in the field of government, but the results showed that
the leadership principle in government had brought in its train only
ghastly destruction.

Let us hope that we will not have to wait and see, as Admiral Doenitz
saw, what happens when self-government and minority rights are sub-
ordinated to expert government and the leadership principle. Let us be
thankful that in this country we have, in laboratory proportions before
us, in proportions so small that the individual effort of half a dozen of
us can make a real difference, this perennial conflict between democratic
self-government and the various modern forms of aristocracy, or govern-
ment by experts. The issue we face is not the issue merely of whether In-
dians will regain their independence of spirit. Our interest in Indian
self-government today is not the interest of sentimentalists or antiquar-
ians. We have a vital concern with Indian self-government because the
Indian is to America what the Jew was to the Russian Czars and Hitler's
Germany. For us, the Indian tribe is the miners1 canary and when it

3*3

THE INDIAN'S QUEST FOR JUSTICE

flutters and droops we know that the poison gasses of intolerance threaten
all other minorities in our land. And who of us is not a member of
some minority?

The issue is not only an issue of Indian rights; it is the much larger
one of whether American liberty can be preserved. If we fight only for
our own liberty because it is our own, are we any better than the dog who
fights for his bone? We must believe in liberty itself to defend it ef-
fectively. What is my own divides me from my fellow man. Liberty,
which is the other side of the shield of tolerance, is a social affair that
unites me with my fellow man. If we fight for civil liberties for our side,
we show that we believe not in civil liberties but in our side. But when
those of us who never were Indians and never expect to be Indians
fight for the cause of Indian self-government, we are fighting for some-
thing that is not limited by the accidents of race and creed and birth;
we are fighting for what Las Casas and Vitoria and Pope Paul III called
the integrity or salvation of our own souls. We are fighting for what
Jefferson called the basic rights of man. We are fighting for the last best
hope of earth. And these are causes that should carry us through many
defeats.

3*4

Americanizing the White Man

"WHAT CAN we do to Americanize the Indian?" The question was
earnestly put by a man who was about to assume control over our coun-
try's Indian affairs. He was appalled by the fact that over a hundred
native tribes within the United States still speak their own languages
and make their own laws on the little fragments of land that Indians
reserved for their own use when they sold the rest of the country to the
white man. The Commissioner-elect was a kind and generous soul, but
his Anglo-Saxon pride was ruffled by the fact that so many Indians pre-
ferred their own way of life, poor as it was, to the benefits of civilization
that Congress longed to confer on them. Perhaps, if Indians did not
realize that they needed more Indian Bureau supervisors and bigger and
better appropriations to make real Americans out of them, it might be
necessary to use a little force.

A bronze-skinned figure in the audience arose. "You will forgive me,"
said a voice of quiet dignity, "if I tell you that my people were Americans
for thousands of years before your people were. The question is not how
you can Americanize us but how we can Americanize you. We have been
working at that for a long time. Sometimes we are discouraged at the
results. But we will keep trying. And the first thing we want to teach you
is that, in the American way of life, each man has respect for his brother's
vision. Because each of us respected his brother's dream, we enjoyed free-
dom here in America while your people were busy killing and enslaving
each other across the water. The relatives you left behind are still trying
to kill each other and enslave each other because they have not learned
there that freedom is built on my respect for my brother's vision and his

Published in The American Scholar, 1952. The American Scholar stated in a foot-
note, "Felix Cohen argued the cases that won for Indians the right to vote in those
Western states that had formerly denied them the franchise. . . . His compilation of
Indian Laws and Treaties and his Handbook of Federal Indian Law are standard
reference works." The Handbook has been quoted frequently by the Supreme Court
in Indian cases. Williams v. Lee, 358 U.S. 217, 219 (1959) is one of the most recent. In
Squire v. Capoeman} 351 U.S. i, 8 (1956), Chief Justice Warren speaking for the
Court referred to Felix Cohen as "an outstanding expert in Indian law."

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THE INDIAN'S QUEST FOR JUSTICE

respect for mine. We have a hard trail ahead of us in trying to American-
ize you and your white brothers. But we are not afraid of hard trails."

The Commissioner-elect, in the months that followed, had repeated
occasion to realize what lay behind these words.

American history, written by the scribes of the conquerors, has been
written as the story of a great European conquest. What was conquered,
according to the European historians and their students, was an almost
empty land, dotted here and there with wild savages. These children of
the wilderness, unable to live alongside civilization, proceeded to dis-
appear as their land was settled. The "vanishing Indian" became the
theme of song and folklore, of painting and sculpture, of fiction and of
the special sort of fiction that sometimes passes as American history. How
far this oft-told story deviates from the truth we are only beginning to
discover.

As yet, few Americans and fewer Europeans realize that America is not
just a pale reflection of Europe — that what is distinctive about America
is Indian, through and through. American cigarettes, chewing gum, rub-
ber balls, popcorn and corn flakes, flapjacks and maple syrup, still make
European eyebrows crawl. American disrespect for the authority of par-
ents, presidents, and would-be dictators still shocks our European critics.
And visitors from the Old World are still mystified when they find no
peasants on American soil. But the expressions of pain, surprise, and
amused superiority that one finds in European accounts of the habits of
the "crazy Americans" are not new. One finds them in European reports
of American life that are 200 and even 400 years old. All these things,
and many things more important in our life today, were distinctively
American when the first European immigrants came to these shores.

The American way of life has stood for 400 years and more as a deadly
challenge to European ideals of authority and submissive obedience in
family life, in love, in school, in work, and in government. For four and
a half centuries government officials have been trying to stop Indians
from behaving in un-European ways. Once the battle was to stop In-
dians from bathing, smoking, and eating potatoes, all of which were sup-
posed to be bad for their bodies and souls. In more recent years, our
bureaucrats have issued countless orders prohibiting Indians from danc-
ing (except after reaching the age of fifty), feasting, wearing Indian
costumes, hunting for sport, traveling for pleasure, or otherwise engaging
in the pursuit of happiness. Above all, they have tried to eradicate the
Indian habit of sharing food and land with needy neighbors. The Indian
Bureau is even now earnestly trying to implement the commandment
once enunciated by a distinguished Commissioner of Indian Affairs: "The

316

AMERICANIZING THE WHITE MAN

Indian must be imbued with the exalting egotism of American [rather
European] civilization, so that he will say 'I' instead of 'we,' and 'this is
mine' instead of 'this is ours/ " Through four centuries the Spanish,
English, and American Indian Bureaus have tried to turn Indians into
submissive peasants. So far they have failed. To that failure we owe much
that is precious in our American way of life.

As yet, only a few scholars know that the changes wrought in white life
by Indian teachers are far more impressive — even if we measure them by
the white man's dollar yardstick — than any changes white teachers have
yet brought to Indian life. How many white fanners know that four-
sevenths of our national farm produce is of plants domesticated or created
by Indian botanists of pre-Columbian times? Take from the agriculture
of the New World the great Indian gifts of corn, tobacco, white and sweet
potatoes, beans, peanuts, tomatoes, pumpkins, chocolate, American cot-
ton, and rubber, and American life would lose more than half its color
and joy as well as more than half its agricultural income. Without these
Indian gifts to American agriculture, we might still be back at the level
of permanent semi-starvation that kept Europeans for thousands of years
ever-ready to sell their freedom for crusts of bread and royal circuses.
And if we lost not only the Indian's material gifts, but the gifts of the
Indian's spirit as well, perhaps we should be just as willing as Europeans
have keen to accept crusts of bread and royal circuses for the surrender
of our freedom. For it is out of a rich Indian democratic tradition that
the distinctive political ideals of American life emerged. Universal suf-
frage for women as well as for men, the pattern of states within a state
that we call federalism, the habit of treating chiefs as servants of the
people instead of as their masters, the insistence that the community
must respect the diversity of men and the diversity of their dreams — all
these things were part of the American way of life before Columbus
landed.

Even the sole American contribution to the vocabulary of democratic
government turns out to be a word borrowed from an Indian language.
When Andrew Jackson popularized a word that his Choctaw neighbors
always used in their councils to signify agreement with another speaker,
the aristocrats he threw out of office, always grasping at a chance to
ridicule backwoods illiteracy, accused him of abbreviating and mis-
spelling "All Correct/' But O.K. (or okeh, in Choctaw) does not mean
"all correct"; it means that we have reached a point where practical
agreement is possible, however far from perfection it may lie. And that
is an idea which is central in the American idea of government.

When Roman legions conquered Greece, Roman historians wrote with

THE INDIAN'S QUEST FOR JUSTICE

as little imagination as did the European historians who have written oi
the white man's conquest of America. What the Roman historians did
not see was that captive Greece would take captive conquering Rome
and that Greek science, Greek philosophy, and a Greek book known as
the Septuagint, translated into the Latin tongue, would guide the civilized
world and bring the tramp of pilgrim feet to Rome a thousand years
after the last Roman regiment was destroyed.

American historians, thinking, like their Roman forebears, of military
victories and changing land boundaries, have failed to see that in agricul
ture, in government, in sport, in education, and in our views of nature
and our fellow men, it is the First Americans who have taken captive
their battlefield conquerors. Our historians, trained for the most part in
Germany and England, have seen America only as an imitation of
Europe. They have not seen that American Indians today — who are,
despite the prevailing myth of the Vanishing Indian, the most rapidly
increasing race in our land — are still teaching America to solve per-
plexing problems of land-use, education, government, and human re-
lations, problems to which Europe never did find adequate answers.

The real epic of America is the yet unfinished story of the Ameri-
canization of the White Man, the transformation of the hungry, fear-
ridden, intolerant men that came to these shores with Columbus and
John Smith. Something happened to these immigrants. Some, to be sure,
remained European, less hungry, perhaps, but equally intolerant and
equally submissive to the authority of rulers and regulations. But some
of these immigrants became Americans, tolerant and neighborly, as
strong and self-reliant men may be, and for the same reason disrespectful
of all authority. To such Americans, a chief who forgets that he is a
public servant and tries to tell other people what to do has always been
an object of ridicule. American laughter has rippled down the centuries
and upset many thrones. And when ridicule and laughter were in-
sufficient, there has always been American blood to finish the job and to
conserve for future generations the blessings of liberty.

Not always were the historians of the conqueror entirely blind to what
was happening among the settlers of the New World. The contagion of
the Indian's love of freedom, which defeated every attempt to establish
Indian slavery, and quickly spread to the Indian's white neighbors, was
noted in 1776 in a popular account of America, widely circulated in
England: "The darling passion of the American is liberty and that in its
fullest extent; nor is it the original natives only to whom this passion
is confined; our colonists sent thither seem to have imbibed the same
principles."

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AMERICANIZING THE WHITE MAN

Something was happening to English colonists who had become ac-
customed to the voice of authority through centuries of Tudor, Stuart,
and Plantagenet despotism, accustomed to taking orders, backed by
force, in the nursery and the schoolroom, in the workshop and the
field, in the choice of dress, mate, occupation, and creed. And what was
happening to these European colonists in the formative years of our
growth as a nation was happening in a land where whites were a small
minority. It was to Indian guides that European colonists had to go
to learn how to grow corn and tobacco, how to stalk or snare American
game, how to travel the Indian trails that laced the American wilderness.
And it was from these same Indian guides that European colonists
learned other lessons they had not dreamed of learning when they left
the Old World.

We need to remember that the Europe that lay behind Columbus
as he sailed toward a New World was in many respects less civilized
than the lands that spread before him. Politically, there was nothing
in the kingdoms and empires of Europe in the fifteenth and sixteenth
centuries to parallel the democratic constitution of the Iroquois Con-
federacy, with its provisions for initiative, referendum, and recall, and
its suffrage for women as well as men. Socially, there was in the Old
World no system of old-age pensions, disability benefits, and unem-
ployment insurance comparable to the system of the Incas.

Of what nation, European or Asiatic, in the sixteenth century could
one have written as the historian Prescott wrote of the Incas: "Their
manifold provisions against poverty . . . were so perfect that in their
wide extent of territory — much of it smitten with the curse of barren-
ness— no man, however humble, suffered for the want of food and
clothing/'

Out of America came the vision of a Utopia, where all men might
be free, where government might rest upon the consent of the governed,
rather than upon the divine right of kings, where no man could be
dispossessed of the land he used for his sustenance. The vision that
came to that great modern saint and legal philosopher, Thomas More,
with the first reports he had from Amerigo Vespucci and other ex-
plorers of the New World — the vision of a democratic society in which
a forty-hour work week left time to enjoy life, in which even the
humblest worker could afford to have windows in his home to let in
the sunlight — this vision lived on. When More's eyes became dim on
the tyrant's scaffold that Henry the Eighth erected for his chancellor, the
gleam that had lightened them had become a proud possession of a
whole generation and of many generations to follow.

3*9

THE INDIAN'S QUEST FOR JUSTICE

Thomas More had seen something that no tyrant and no dictatorship
could wipe out.

No despotism afterwards could escape the fatal comparison between
what is and what might be. And even those who, like Adam Smith and
Jeremy Bentham, ridiculed all Utopias, ended up by formulating Utopias
of their own. In these and many other ways, Indian America helped to
civilize Europe.

To Francisco Vitoria, teacher of moral theology at the University of
Salamanca, in 1532, reports from the New World showed the possi-
bility of basing international dealings on reason and mutual accom-
modation, and thus provided the foundations for an international law
not limited by a single religious faith. And when Hugo Grotius picked
up the threads of Vitoria's thought to weave the fabric of modern
international law, he too was deeply influenced by Indian examples of
just government. To John Locke, the champion of tolerance and of
the right of revolution, the state of nature and of natural equality to
which men might appeal in rebellion against tyranny was set not in a
remote dawn of history but beyond the Atlantic sunset. And so, too,
Montaigne, Montesquieu, Voltaire, Rousseau, and their various con-
temporaries found in the democracy of native America, in the "liberty,
equality, fraternity" of the Indians, a light for suffering humanity, a
flame in which to burn away the dross of ancient despotisms. In the
American Revolution, in the French Revolution, and in the revolt of
the Spanish Colonies, the passion for liberty nourished by the Indian
burst into consuming flame.

On the shores of Brazil, in 1497, there was no Statue of Liberty with
its inscribed message to Europe: "Send me your . . . struggling masses
yearning to be free." But in almost the first report to Europe from
the American continent, Amerigo Vespucci, shipwrecked on the coast
of Brazil, reported on the hospitality of the natives: "Seeing that the
aforesaid ship was rent asunder, they went out in their little boats . . .
carried ashore the men and the munitions which were contained therein,
with charity so great it is impossible to describe." For four centuries
white Americans continued this tradition of hospitality toward the
stranger, and those ports which were most hospitable became the most
prosperous.

Is it any wonder that the greatest teachers of American democracy
have gone to school with the Indian?

Were not the first common councils of the American Colonies, the
Council of Lancaster in 1744 and the famous Albany Congress of 1754,
councils called for the purpose of treating with the Iroquois Con-

320

AMERICANIZING THE WHITE MAN

federacy, whose leaders were unwilling to treat separately with the
various quarreling Colonies? It was the great Iroquois Chief Canasatego
who advised the Colonial governors meeting at Lancaster in 1744:

Our Wise forefathers established Union and Amity between the Five
Nations. This has made us formidable; this has given us great Weight
and Authority with our neighboring Nations. We are a powerful
Confederacy; and by your observing the same Methods, our Wise
Forefathers have taken, you will acquire such Strength and power.
Therefore whatever befalls you, never jail out with one another.

The advice of Canasatego was eagerly taken up by Benjamin Franklin.

It would be a strange thing [he advised the Albany Congress] if Six
Nations of ignorant savages should be capable of forming a scheme
for such an union and be able to execute it in such a manner that it
has subsisted ages and appears indissoluble, and yet that a like
union should be impracticable for ten or a dozen English colonies,
to whom it is more necessary and must be more advantageous, and
who cannot be supposed to want an equal understanding of their
interest.

The author of the American Declaration of Independence and of
our first bill of rights freely acknowledged his debt to Indian teachers.
Comparing the freedom of Indian society with the oppression of Euro-
pean society, Thomas Jefferson struck the keynote of the great American
experiment in democracy:

Imperfect as this species of coercion may seem, crimes axe very rare
among them [the Indians of Virginia]; so much that were it made a
question, whether no law, as among the savage Americans, or too
much law, as among the civilized Europeans, submits man to the
greatest evil, one who has seen both conditions of existence would
pronounce it to be the last; and that the sheep are happier of them-
selves, than under the care of the wolves. It will be said, that great
societies cannot exist without government. The savages, therefore,
break them into small ones.

Here Jefferson put his finger on the quality that distinguishes Ameri-
can attitudes toward government from continental attitudes. The caution
against aggrandizement of governmental power, the preference for local
self-government even though it seem less efficient, the trust in the ability
of good neighbors to settle their own problems by mutual accommoda-
tion without totalitarian rule — these are enduring elements of our
American democracy.

5*1

THE INDIAN'S QUEST FOR JUSTICE

The theory of American democracy is based upon the premise that
self-government is better than expert government. The theory was simply
stated by President Jefferson in his discussion with the Cherokees on
forms of government. "The fool," he said, "has as great a right to express
his opinion by vote as the wise, because he is equally free and equally
master of himself." Here was an idea that, however it might have
shocked Plato or Aristotle or Machiavelli, was not strange to the
Cherokee chiefs. For they, like the chiefs of many other Indian tribes,
would again and again refuse to make decisions for their people until
the decision had been thoroughly thrashed out in the councils of the
people and approved by majority, or, more commonly, by unanimous
agreement. This characteristic of Indian leadership, often so annoying
to white administrators who want swift decisions from Indian leaders,
has been a sustaining source of strength to Indian democracy. Who shall
say that this deference to the public will is not the greatest achievement
of American political leadership, and the greatest lesson that the Amer-
icas may teach to lands less free beyond the seas?

Measurement is difficult in the realm of political theories: those ac-
customed to the histories of the conqueror will hardly be convinced,
though example be piled on example, that American democracy, free-
dom, and tolerance are more American than European and have deep
aboriginal roots in our land. But measurement is easier in the field
of agriculture. And here the disparagers of Indian life are up against
the hard fact that the larger part of the agricultural output of the
United States, and of all America, consists of plants domesticated by
the Indian. Irish potatoes, Turkish tobacco, India rubber, Egyptian
cotton — what are all these but Indian products disguised with re-
spectable Old World names?

Significantly enough, the products of Indian agriculture were resisted
as bitterly in the Old World as were the ideas of democracy, liberty,
and tolerance that floated back to Europe from the New World. The
bitterness of this resistance is evidenced by the cut-off ears and noses of
German peasants who for centuries refused, despite all punishments,
to eat potatoes, and by the dire penalties inflicted from England to India
upon smokers of tobacco. Down to recent decades the tomato, or love
apple, was regarded by most Europeans as poisonous. Gradually a few
of the agricultural achievements of Indian America have become ac-
cepted by the rest of the world. But is there any reason to think that
this process of give-and-take is at an end? The rediscovery of an old
Indian dish, toasted corn flakes, not many years ago revolutionized the
breakfast habits of the United States. We have just increased America's

322

AMERICANIZING THE WHITE MAN

corn crop by 40 per cent by rediscovering the Indian preference for
hybrid corn.

In medicine, as in the production of food and textiles, the conven-
tional picture of the Indian as an ignorant savage is very far from
the truth. Until a few years ago most of America's contributions to
medical science were of Indian origin. Quinine, cocaine, cascara sagrada,
ipecac, witch hazel, oil of wintergreen, petroleum jelly, arnica — all these
and many other native medicines were known and developed by the
medical profession in America long before the first white physician
landed on American shores. In fact each of these products was de-
nounced by learned European doctors before it became accepted into
the normal pharmacopoeia. And it is interesting to note that in the
400 years that European physicians and botanists have been examining
and analyzing the flora of America, they have not yet discovered a
medicinal herb not known to the Indians.

These are material things that can be counted and measured. They
constitute tangible refutation of the slander that the Indian did not
know how to make use of his land and its resources until the white
conqueror taught him. But to limit one's gaze to these materials is
not only to lose sight of the intangibles of American life but even
to miss the human significance of these material things. For corn, as
countless Indian generations have known, is not simply a thing. It
is a way of life. Corn, reproducing itself three hundredfold, without
benefit of horse or plow — where plowed fields of wheat or rye produce
only twentyfold or thirtyfold — is a sturdy friend of freedom. The fron-
tiersman who would not accept a burdensome government could take
a sack of seed corn on his shoulders into the wilderness in the spring,
and after three months he might be reasonably assured against hunger
for the rest of his life. No such path to freedom, no such check upon
the growth of tyranny, was ever open to growers of wheat or rye or rice.

Oklahoma is full of stories of the Green Corn Rebellion. But really
the Green Corn Rebellion has been an annual event in American life
for thousands of years. Down through the centuries, every American
spring has seen men and women in rebellion against petty tyrannies
and dictatorships of nation or city, hamlet or household. Independent
souls have gone out with sacks of seed corn to win their own inde-
pendence. Long before 1776, Americans were celebrating Independence
Day, the green corn festival in July, when the most bountiful of all
man-made harvests assures independence from the fear of hunger, and
from all the other fears that hungry men acquire when they sell control
of their lives for protection from hunger.

3*3

THE INDIAN'S QUEST FOR JUSTICE

"Tomahawk Rights*' and "Corn Titles" are the terms that were once
applied to American frontier homesteads. But the tomahawk rights
and corn titles are far older than the white man's homestead laws.
American pioneers were following an old Indian pattern when they
went into the wilderness, chopped down trees or girdled them with their
tomahawks, planted their corn among the stumps, and claimed possession
by right of use and occupancy. The whole economic history of rural
America has been a struggle between the feudal land tenures of Europe,
glorifying the absentee owner, the man on horseback, on the one hand,
and on the other, the Indian land tenure, where land right is the fruit
of use and occupancy.

What is the great American contribution to the law of property?
Is it not the homestead system, the grant of land rights based on use and
occupancy, and the protection of the homestead against levy, execution,
and taxes? Does not this represent the triumph on our soil of the Indian
landholding pattern, just as in lands south of the Rio Grande a
restoration of the Ejido and the breakdown of the old feudal hacienda
system represent the long-delayed triumph of native land patterns, the
triumph of tenure by the hoe over tenure by the sword?

And does not the great American melodrama of the past two centuries
faithfully celebrate the triumph of innocence and home ownership over
the mortgage-holding villain? The hero of the melodrama has had many
names. Most recently he has been called HOLC or FHA. But always
the audience has cheered the right of a man to hold his own home
against creditors, sheriffs, and villains. And the theme goes back four
and a half centuries to Amerigo Vespucci, who reported that in America,
where "every one is his own master," men's rights in the land they lived
on were sacred and inalienable*

Because the Indian attitude to land emphasized the duty of loving
care, rather than the right to alienate or collect rents, which was the
mark of property rights in feudal Europe, it seemed to Vespucci that
here was no real property; and More, who incorporated whole phrases
of Vespucci's account in his Utopia, wrote of his ideal commonwealth:
"They count themselves rather the good husbands, than the owners of
their lands." 1

Even the ^ lowly Indian (Irish) potato revolutionized European his-
tory. First, it banished the fear of hunger from millions of European
homes. For a farm family that would starve on four acres of wheat or
rye could thrive and multiply on an acre of potatoes. The introduction
of the white potato resulted in an unprecedented rise in the standard of

i. Utopia, Bk. II,

3*4

AMERICANIZING THE WHITE MAN

living of Europe and the British Isles, and ultimately laid the basis for
a great growth in population density and a vast expansion of commerce
and industry.

Tobacco, too, carried with it a way of life. The pipe of peace is
an enduring symbol of the invitation to relaxation and contentment
that makes poor men rich.

If American agriculture today is predominantly Indian in its origin,
may not the same be true of less tangible aspects of the life that our
agriculture sustains? Consider, for example, the love of nature which is
institutionalized in our athletics, in our boy scout movement, and in
our vacation habits. In the Europe of Columbus, bathing was a sinful
indulgence. One of Queen Isabella's first instructions to her agents who
sought to civilize the Indians in 1503 was: "They are not to bathe as
frequently as hitherto/' Less than 200 years ago it was a misdemeanor in
Boston to take a bath except when prescribed by a physician. In the
Europe of Columbus' day, group athletic contests were practically un-
known; and the color of white paste or swansdown was an essential part,
according to the poets, of the European aristocratic ideal of feminine
beauty. The millions of dollars spent every year by American vacation-
ists, men and women, on resort beaches, acquiring the golden tan of an
Indian skin, is the best tangible evidence of the way in which the Indian's
love of sun and water, of bodily beauty, cleanliness, and athletic prowess,
in both sexes, has become a part of the American soul.

"During his second visit to South America," the Encyclopedia Britan-
nica tells us, "Columbus was astonished to see the native Indians amus-
ing themselves with a black, heavy ball made from a vegetable gum.
Later explorers were equally impressed by these balls, and an historian
of the time remarked that they rebounded so much that they appeared
alive."

What has happened to these balls? You will find them all across
the face of America, on tennis courts and football fields, in basketball
courts no different from the basketball courts uncovered in ancient cities
like Mitla, in Mexican Oaxaca. You will find them in baseball parks, on
sandlots, and on the sidewalks of our teeming cities. You will find them
tied with rubber strings to little girls' fingers.

The sports of pre-Columbian Europe revolved chiefly about killing

killing of stags, bears, birds, fish, bulls, foxes, and human beings, with
and without armor. Those sports that did not involve actual killing,
such as archery, were at least concerned with practice for it. To this day
a sportsman, in Europe, is one who kills for pleasure rather than for food
or profit. Indian America substituted the rubber balls that "rebounded

3*5

THE INDIAN'S QUEST FOR JUSTICE

so much that they appeared alive." The Indian games out of which our
national games have evolved are not always recognizable today, but the
spirit of group sport and team play that was cultivated in pre-Columbian
America still offers a peaceful outlet for combative instincts that in other
lands find bloodier forms of expression. And millions of white tourists
and vacationists — whether or not they use such Indian inventions as
teepees, moccasins, canoes, rubber balls, hammocks, pack baskets, tump
lines, toboggans, and snow shoes, and whether or not they munch
chocolate, peanuts, or popcorn, chew gum or smoke tobacco — are learn-
ing what the Indians knew centuries ago: the peace and adventure of
the trail and the camp fire. The white man, having conquered America,
is just beginning to learn how to enjoy it.

Is there anything more characteristically American than the pursuit
of happiness that is enshrined in our Declaration of Independence, in-
stitutionalized in our national park system, our boy scout movement, our
athletic sports, our national worship of sun and air and water?

Acculturation, unlike assimilation, is not a one-way street. The Amer-
ican Indian has learned many things from his white teacher. But does not
every great teacher carry away from his students more than he brought
to them?

It is easier to talk about the past than about the future. But it is
the future that really interests us, and the point that most needs making
is that we still have much to learn from the Indian. There is still much
that we can take from the Indian to enrich ourselves without impoverish-
ing the Indian. We have not by any means exhausted the great harvest
of Indian inventions and discoveries in agriculture, government, medi-
cine, sport, education, and craftsmanship. Can we be sure that we have
nothing to learn from the Indian techniques in law that leading Ameri-
can legal scholars like Professor Llewellyn are finding so rich a source of
insight for our own jurisprudence? Are we sure that we have nothing
to learn from Indian techniques of government, techniques which in
some tribes and pueblos have established political unanimity, a govern-
ment truly based on the consent of the governed — not for a moment,
a month, or a year, but for unbroken centuries?

Beginning in the seventeenth and eighteenth centuries, Indians bar-
gaining over land sales won for themselves rights that white Americans
would win many years or many decades afterwards — the right to pro-
tection in homesteads against forced sales and taxes, the right to free
schools and vocational training, to free public health facilities; and
the rights of public credit, social security (in the form of food and cloth-
ing) against times of distress, and freedom from imprisonment for debt

326

AMERICANIZING THE WHITE MAN

and other monstrosities of white man's law. And year after year, as-
similationists have cried out in horror, asking the abolition of these
peculiarities that "set the Indian apart," while year after year white
men were winning similar advantages for themselves. The more white
men take on of Indian political customs, the more important becomes
the role of the Indian as a teacher, and the more grotesque becomes
the stereotype of Indian degradation with its threadbare corollary that
we who have civilized the Indian have earned the right to take his lands,
minerals, timber, and fisheries in payment.

Pure selfishness — so rare a commodity — would suggest that before we
destroy the Indian and his way of life by seizing his last remaining
resources, we should make sure that we have run through all the gifts
of Indian agriculture, medicine, and sport. In the field of child care, for
example, one of the great forward scientific movements at the present
time takes off from the simple observation that Indian babies, brought
up in traditional ways, rarely cry or stutter. Psychiatrists, pediatricians,
and hospital administrators are now experimenting with substituting
Indian methods of child training for the rigid schedules and formulas
that have controlled the antiseptic babies of the last few decades.

Life after all is a pretty complicated business. There is a good deal
about it that none of us understands. Customs as horrible, at first sight,
as burning weeds and inhaling the smoke sometimes turn out to have a
universal appeal. None of us knows enough about the other fellow's
way of life to have a right to wipe it out. We are not gods to make other
men in our own image. Is it not in our own best selfish interest to let our
fellow men plant their corn and cultivate it as they think best, while we
watch and learn? When we have gathered the last golden grain of knowl-
edge from the harvest of the Indian summer, then we can talk about
Americanizing the Indian. Until then, we might do better to concentrate
our attention on the real job of the New World, the job of Americanizing
the white man.

3*7

Indian Wardship: The Twilight of a Myth

ONE of the oldest living legends in American life is the idea that Indians
are not citizens. Behind this legend lie two popular fallacies: the idea that
Indians are wards under the guardianship of the Great White Father,
and the idea that a ward cannot be a citizen or, at least, cannot exercise
the rights of citizenship. Both these ideas are mistaken. But popular
stereotypes die hard. Wholesale grants of citizenship to Indians in the
nineteenth century did not do away with the idea that Indians are
not citizens. Even an act of Congress in 1924 expressly granting full
citizenship to all remaining non-citizen Indians could not kill this legend.
To this day most Americans have not yet adjusted to the fact of Indian
citizenship. But while the legend of Indian wardship lives on in a sort
of twilight shadow-world of popular opinion, the legend has faded very
rapidly in recent years so far as the courts are concerned.

During the past five years the question whether Indians are wards
under federal guardianship has been squarely raised in a series of test
cases, in which the general counsel of the Association on American
Indian Affairs has participated. In each case the courts have held that
Indians are not wards under guardianship, but on the contrary are full
citizens of the United States and of the states wherein they reside, and
are entitled to all the rights and privileges of citizenship.

The first of these recent test cases arose in connection with Indian
voting in Arizona. A 1928 decision of the Arizona Supreme Court had
denied the franchise to reservation Indians on the ground that they were
"persons under guardianship." Under the Constitution of Arizona "per-
sons under guardianship" cannot vote. In 1948 a new test case was
brought by Arizona Indians. On their behalf the argument was put
forward that Indians as a class had never been placed under guardian-
ship by any act of Congress or any court decision. Such being the case,
popular talk or administrative declarations about wardship or guardian-
Published in The American Indian, 1953.

328

INDIAN WARDSHIP

ship could not deprive an Indian citizen of his rights of citizenship.
The Supreme Court of Arizona unanimously upheld our contention and
reversed its so-year-old contrary ruling.* In one of the most important
decisions ever rendered in the field of Indian affairs, Justice Levi Udall,
for the Arizona Supreme Court, declared:

No superintendent or other official or employee of the United
States has custody of the person of the plaintiffs. They are not con-
fined to the reservation and may leave it at any time they so desire.
The plaintiffs are under no duty to follow the advice or instructions
of any Federal officials in selecting a place to live. The power of the
commissioner of Indian Affairs, or of the local superintendent, to
decide what people might visit an Indian reservation and meet
the Indians thereon was abolished in 1934. (48 Stat. 787) The plain-
tiffs have full and untrammeled right to utilize their own property
(except their interest in land or other property to which the Fed-
eral government has a trustee's title) as they see fit and to receive
and expend income therefrom without Federal interference. A cestui
qui trust or beneficiary of a trust estate who is a white person does
not thereby become a person "under guardianship."

Judicial references to seamen as "wards of the government" are
even more common than the references to Indians as "wards of the
government/' Yet Arizona has never denied white or black seamen
the right to vote as being "persons under guardianship." Similarly
it may be noted that members of the armed services, federal em-
ployees, veterans, and even beneficiaries or recipients of social secu-
rity payments or other Federal payments have all been referred to
loosely, from time to time, as "wards of the government/1 yet no
one has had the temerity to suggest that such persons, when other-
wise qualified, were ineligible to vote . . .

We hold that the term "persons under guardianship" has no ap-
plication to the plaintiffs or to the Federal status of Indians in
Arizona as a class.

The Arizona decision was followed a few weeks later by a similar
decision of a three-judge federal constitutional court which upheld
our position that the provision of the Constitution of New Mexico deny-
ing the franchise to "Indians not taxed" was a racial discrimination
invalid under the Fifteenth Amendment/)- Today Indians vote in all
states of the union.

*[Ed. note: Harrison v. Laveen, 67 Ariz. 337, 196 Pac. 2d 456 (1948)]
f [Ed. note: Trujillo v. Garley (B.C., N.M., 1948, unreported)]

329

THE INDIAN'S QUEST FOR JUSTICE

Once the right to vote had been won, progress toward equality in
social security and other public welfare payments became the next sub-
ject for test litigation.

Test litigation instituted by Indians of Arizona and New Mexico in
1948 resulted in both these states adding Indians to their social security
rolls, and today Indians are not excluded from the social security rolls
of any state.

Some counties, however, still refuse Indians relief out of state or local
welfare funds. The legality of such discrimination was recently tested in
the case of San Diego County, which refused to make welfare payments
to reservation Indians, claiming that such persons were wards of the
Federal Government. This claim was challenged by the Indians con-
cerned, by the Attorney General of California, and by the Association on
American Indian Affairs. The California Superior Court agreed with our
contention that Indians are not under federal guardianship and that dis-
crimination against reservation Indians in the distribution of county
relief is illegal.* Judge Mundo's opinion comes squarely to grips with
the guardianship argument and reaches this conclusion:

In the briefs filed in the present case by the Attorney General of
California and the General Counsel of the Association on American
Indian Affairs, Inc., the contention is made that the Mission Indians
of California are no more "wards" of the Federal government than a
non-Indian war veteran who may be entitled to term insurance,
home purchase assistance, educational and medical benefits, as well
as burial expenses, and support and maintenance at a veteran's
facility. They point out that the usual characteristics of a guardian
and ward relationship are not present in the case of the California
Indians . . .

It is true that some of the earlier cases and textbooks refer to
Indians as being wards of the United States, and it also is true
that the inhabitants of certain Indian reservations have been con-
sidered by the United States government as being under its pro-
tection; but it is clear, however, that the Indians thus protected
were not in a guardian-ward relationship, although in some in-
stances some of the characteristics of such relationship existed

The fact that laws are passed for the protection of seamen and
Indians, as well as other classes of citizens, does not mean that they
become wards in the true sense of the word, nor do these special
enactments operate to impair other rights which they enjoy as
citizens.

* [Ed. note: Acosta v. County of San Diego, (Gal. D.C. App. 1954), 272 Pac. ad 9*]

530

INDIAN WARDSHIP

Latest of the test cases in which courts have been asked to decide
whether Indians are wards or citizens is the suit brought by the State
of Arizona against the Federal Security Administrator, Oveta Gulp
Hobby, to compel approval of a social security program for joint federal-
state payments to all cripples except those who have "Indian blood" and
live "on Indian reservations/' The State of Arizona sought to defend
its position with the traditional argument that Indians are persons under
federal guardianship. This position was challenged by the Department
of Justice and the Association of American Indian Affairs. The United
States District Court for the District of Columbia rejected Arizona's
contention and held that any discrimination against Indians in social
security is forbidden by the Fourteenth Amendment to the Federal Con-
stitution.* Accepting the logical consequences of this decision, the State
of Arizona has announced that beginning April i, 1953, Indians will be
treated exactly like their white and black neighbors in social security
programs for the aged, the blind, and dependent children. The 1949
compromise agreement under which the Bureau of Indian Affairs paid
part of the social security bill for Indians in Arizona and New Mexico
has now been terminated.

So far as the courts are concerned, these decisions mark the final burial
of the doctrine of Indian wardship.

Outside of the courts, however, the legend is a still potent force for evil.
Three powerful factors operate to keep this legend alive.

In the first place, there is an ancient popular impression that because
an Indian tribe is something less than a state, a member of a tribe is
something less than a citizen. In its origin the doctrine of Indian ward-
ship arose out of a misunderstanding of Chief Justice Marshall's holding,
in 1831, that an Indian tribe was not a foreign nation but was rather
a "domestic dependent nation," and that its position toward the United
States resembles that of a ward to a guardian. This did not mean that an
Indian tribe is a ward; even less did it mean that an individual Indian
is a ward. But the opinion and several later opinions popularized the
term wardship, and the term soon became a magic word in the mouths
and proclamations of Indian agents and Indian Commissioners. Over
the years, any order or command or sale or lease for which no justifica-
tion could be found in any treaty or act of Congress came to be justified
by such officials as an act of "guardianship," and every denial of civil,
political, or economic rights to Indians came to be blamed on their
alleged "wardship." Under the reign of these magic words nothing
Indian was safe. The Indian's hair was cut, his dances were forbidden,
his oil lands, timber lands, and grazing lands were disposed of, by

* [Ed. note: Arizona v. Hobby, 221 F. («d) 498 (CA. & D.C., 1954)]

S31

THE INDIAN'S QUEST FOR JUSTICE

Indian agents and Indian Commissioners for whom the magic word
"wardship" always made up for any lack of statutory authority. Through
constant repetition of that phrase by the persons having greatest influence
in shaping public opinion, the idea of wardship under a Great White
Father became firmly fixed in the popular imagination. The paternalistic
attitude of Indian Bureau administrators during recent years has un-
fortunately served to buttress that illusion. But it remains an illusion,
unsupported by legal authority.

Equally important as a support of the popular legend of Indian ward-
ship is the fact of the existence of a Bureau of Indian Affairs. If Indians
are legally not "wards/1 how can we explain the fact that the Federal
Government maintains an Indian Bureau at a cost of more than 80
million dollars a year?

Perhaps the best way to answer this question is to ask: Are veterans
wards of the Federal Government because Congress appropriates far
more than 80 million dollars a year for veteran benefits? And what about
our Women's Bureau and our Children's Bureau? Does the establishment
of such bureaus make women and children wards of the Federal Govern-
ment? If the Federal Government chooses to concentrate the perform-
ance of certain public services in a given bureau, does that detract from
the rights of the citizens whom the bureau is supposed to serve?

Whether the Federal Government should attempt to funnel through
the Bureau of Indian Affairs all sorts of public services in connection
with schools, roads, and hospitals which other citizens receive from other
agencies, federal or local, is a policy question beyond the scope of
this discussion. Nor do we consider here whether the Federal Govern-
ment, after promising various tax exemptions to Indians, is morally
obligated to the states and counties which must open their schools and
roads to non-taxpayers as well as to taxpayers. Whether we like it or not,
the fact is that such subsidies to states and counties make up a very
large part of the Indian Bureau budget. But how these services are
financed and whether these services are administered by one agency or
many has no bearing on the rights of citizenship of the beneficiaries.
An alien may pay millions in taxes but he does not thereby acquire rights
of citizenship. Nor does a citizen lose any rights of citizenship by owning
tax-exempt bonds or tax-exempt land.

Apart from the vested interests of thousands of Bureau employees in
maintaining the prestige that floats about the word "guardianship"
and the popular misunderstandings that cluster around the existence of
an Indian Bureau, there is a third source of confusion that helps to main-
tain the legend of Indian wardship. This is the tendency of non-lawyers
to confuse two very different legal relationships — trusteeship and guard-

33*

INDIAN WARDSHIP

ianship. Guardianship is a relation that limits the personal rights of a
ward. Trusteeship is a relation that limits the property rights of a
trustee and makes the trustee the servant of the trust beneficiary.

As a result of many treaties, statutes, and agreements, much Indian
property, both tribal and individual, is held in trust by the United
States. In the white man's business world, a "trust" is likely to be a
property of great value; the trustee is required to protect the trust
property and to turn over all the profits of the enterprise to the
beneficiaries of the trust; the trustee has no control over the beneficiary's
person. In the Indian's world, the same principles should apply; there is
no legal basis for the common view that the Indian Bureau may deal
with Indian trust property as if it were the owner thereof, or use such
power over lands and funds to control Indian lives and thoughts. Un-
fortunately, administrators often find it convenient to forget their duties,
which are lumped under the legal term "trusteeship," and to concentrate
attention on their powers, which go by the name of "guardianship."

A long tradition of bureaucracy has a way of capturing the minds of
even those administrators and Congressmen who want most heartily to
see Indians enjoying all the rights of citizens. It is discouraging to see
how quickly such opponents of paternalism and bureaucracy often suc-
cumb to the maze of departmental arguments that convince them that
Indians do not now have the ordinary rights of citizenship and that en-
joyment of such rights by Indians must be postponed to a remote date in
the future. Use of the word "eventually" marks the closing of the trap.
When an official or a Congressman begins to talk about Indians "even-
tually" having the rights of citizenship, one can be sure that he has fallen
victim to the bureaucratic myth that Indians do not now have the
rights of citizenship. Here as elsewhere lack of knowledge is a more
potent support of injustice than is ill-will.

It may be that the roots of our Indian wardship concept go even
deeper into our national conscience. For in our hearts we know that
Indians are not only our fellow-citizens; we know that our land was theirs
before it was ours. Because we know that we never fully paid the Indians
for what we received from them, we continue to salve our consciences
by offering them hospitals, educational benefits, limited tax exemptions,
and other aids to better living, just as we extend similar bounties to
veterans whom we tore from their homes and careers and sent to fight our
nation's wars. Whether we do these things pursuant to treaty promises or
political campaign promises or simply out of a sense of moral decency,
we have no moral right to use any such gifts as clubs with which to
curtail the political or civic rights of our Indian fellow citizens.

So long as the myth of Indian wardship persists, however, no benefit

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THE INDIAN'S QUEST FOR JUSTICE

conferred upon any Indian, not even a million dollar judgment against
the United States, will ever give the Indian freedom; on the contrary,
such a judgment, turned over to the Indian Bureau to spend on new
Bureau projects, may expand and perpetuate Indian Bureau control of
Indian lives. For Indian litigation is the only litigation in the world
where, if a plaintiff wins, the judgment in his favor is paid over to the
defendant who loses — in effect to the very Bureau that committed the
wrong for which recovery is allowed. It is not enough, therefore, to have
established machinery, as Congress has done, to award judgments or
other benefits to Indian tribes for past wrongs. What is important is that
the United States pay its debts to the Indian — not to the Indian Bureau.
When this is done, the relation of our nation to its first inhabitants
will no longer be tainted with the poisons of charity, condescension, dis-
crimination, and resentment. Until the ghost of Indian wardship is laid,
every benefit conferred on Indians may carry with it the curse of dis-
crimination,

Once the standard confusions that cluster about words like "ward-
ship" and "guardianship" have been wiped away, it is plain to see that
Indians are not second-class citizens; they are not wards; they are not
under guardianship; they are entitled to the enjoyment of all the rights
of other citizens, not eventually but now. Whether Indians will in fact
be treated by their neighbors and their public servants as first class
citizens will depend upon the success of Indians and their friends in
dispelling the lingering legend of wardship. That legend will finally be
buried when we begin to challenge every assertion of special authority
over Indian lives and Indian property.

Every administrative assertion of a power over Indians which does
not exist over non-Indians deserves to be vigorously scrutinized. If the
claim is not backed up by Congressional legislation, it is generally safe
to conclude that the claim is legally invalid and should be rejected.
If it is backed by legislation, the only safe conclusion is that the legis-
lation should be repealed. And if the Congressional legislation which
would confirm or establish some special authority to rule and regulate
Indian life or dispose of Indian property in ways not applicable to non-
Indians has not yet been passed, the only safe conclusion is that it should
not be passed. This is particularly worth remembering when bills con-
ferring vast new "temporary" powers on Bureau officials are ornamented
by high-sounding terms like "withdrawal" and "emancipation."

334

BOOK III
The Philosophy of American Democracy

The Socialization of Morality

I. THE POVERTY OF DESOCIALIZED MORALITY

It was the peculiar fate of my generation to be born into a world of
collapsing faiths. The years of the War and the years after played havoc
with the dreams of many centuries. Hopes which had fulfilled the lives
of intelligent men and women became heaps of dust. The vision of
Progress through Science came to reek with the stench of gunpowder
and poison gas. Men's faith in the permanent values of philosophy and
religion could not survive undimmed the spectacle of philosophers and
chaplains cursing each other across the lines of battle. Hopes of securing
a better world through trade union organization, woman suffrage, or
political reform, hopes which had informed many useful lives, were
silently abandoned and won few new champions. Traditional American
faiths in Temperance, in Democracy, and even in Personal Success, never
took hold of the hearts that were molded in the years of the War. Even
the ideal of patriotism came to seem a hollow sham in a war fought
by conscript armies and financed by Big Business on a basis of three and
one-half per cent interest compounded quarterly.

This is not to say that the War actually destroyed vital growths of
the human spirit. Rather it probed ideals and movements that had been
long afflicted with internal decay. It revealed the hollowness of the
moral ideals of past centuries, and it left all contemporary faiths weaker
— so that an acute critic of literature could say, a few years ago, that
tragedy was no longer possible in our age because we had lost all belief
in ultimate values.1

Loss of faith in traditional moral values found varied expression. A
widely professed belief in "tolerance" or "freedom/* centering in this
country about the natural right to get drunk, proceeded from the
premise, "There are no certain moral principles/' to the conclusion,

i. Krutch, The Modern Temper (1929), chap. 5.

Chapter in American Philosophy Today and Tomorrow, ed. by Horace M. Kallen
and Sidney Hook, 1935.

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

"It is wrong for us to impose standards upon other individuals/' — and
thus attempted to derive a moral code from the fact of moral ignorance.
Popular exploitations of anthropology, psychology, and psychoanalysis
offered cumulative reassurance to those who felt it necessary to regard
moral standards as products of superstition, conspiracy, indigestion, or
sexual aberration, and even Einstein's theory of relativity came to be
popularly regarded as mathematical evidence for the proposition that
every moral belief is as good as any other moral belief. Our pervasive
distrust of our own lingering beliefs produced the peculiar educational
dogma that teachers (other than teachers of education) should not teach
facts or doctrines but should rather permit students to develop "from
within" and to think "independently." Above all, the loss of faith in
traditional moral values led to intensified revolt against any assertion of
moral or social responsibility, in every craft and art of modern life from
the writing of poetry to the manufacture of munitions.

None of these tendencies of the postwar years was new. Each is
readily traced back a century or more. But each has reached a point of
new intensity in the last two decades.

Here is the problem, here the setting, of a new philosophy of values,
a new morality, to be molded in the two or three decades before us.
For one thing is certain, that no civilization can endure which distrusts
its moral foundations as profoundly as we have come to distrust the
ideals that order our social existence. No society can long exist in which
the disintegrating forces of class interests and class rivalries, economic,
racial, and national, find no other court of appeal than the field of
violent struggle. It is true, no doubt, as the communists urge, that the
bitterness of national and racial hatred may be overcome by an in-
tensification of the class struggle, leading to the international consolida-
tion of opposing forces of labor and capital. It is equally true, as the
fascists have shown, that economic and political conflicts within a nation
may be silenced by an intensification of national and racial hatred. But
the substitution of one hatred for another offers no permanent basis of
peace in an interdependent world. The suicide of our civilization can
be prevented only by the discovery of a new pattern upon which its life
can be integrated, a new synthesis of conflicting human desires.

One hesitates to assign this vital task to the province of ethics or
morality. For recent centuries of philosophical discussion have endowed
the words "ethical" and "moral" with a milk-and-watery flavor and an
odor of Sunday School sanctity. To speak of a "moral" man, a "good"
woman, or an "ethical" druggist is to say very little about human values.
Preoccupation with "moral" problems is commonly regarded as psycho-

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SOCIALIZATION OF MORALITY

pathic in adults. Economists, judges, and artists, alike, are quick to resent
the suggestion that moral questions exist in their several fields of
endeavor. Yet the critique of a society's ideals and standards is in-
evitably a moral problem, a problem reaching to the ultimate values of
human life, and one cannot even outline the task of transvaluation with-
out in some measure appraising the strength and weakness of traditional
moral theory.

If the substance of traditional moral theory offers only faltering or
irrelevant answers to the problems of conduct that the modern world
poses, this is not because problems of social existence have become
unmoral, but rather because moralists have become unsocial.

Moral theory in the western world of the last two or three centuries
has been dominated by the tradition of individualism, largely drawn
from the precepts of the New Testament and the economic and political
ethics of Protestantism, spiced with the worldly observation of men
like Machiavelli and Mandeville, and attaining its purest philosophical
formulation and reductio ad absurdum in the Kantian doctrine which
denies the existence of moral problems in the sensible world, and reduces
morality to a logical postulate devoid of social content.2

The morality of the individualist tradition is a morality of peculiar
narrowness, being addressed almost entirely to the moral problems of
persons who have nothing important to do. For children and slaves,
the only significant questions of conduct arise in situations of intimate
personal relationship, and it is in this restricted context that the prob-
lems of temptation, sin, sex, love, manners, proprietary and intellectual
honesty, selfishness and discipline are treated by moral philosophers.
Moral philosophers have had little to say about such matters as peace
and war, the distribution and the use of economic power and political
force, the functions of scientific thought, of education, and of artistic
endeavor, the changing substance of cultures, and the physical conditions
of existence.3 These are matters which, although they do not present
problems of conduct to children or slaves, do present problems of
conduct to legislators, voters, artists, scientists, businessmen, workers,
philosophers, teachers, revolutionists, judges, and other individuals who
exercise power over human lives. And the patterns of life even of

2. I do not mean to suggest that Kant was a consistent Kantian. I have elsewhere
indicated some of the empirical social assumptions that characterize his legal philoso-
phy. See Ethical Systems and Legal Ideals (1933), pp. 107-08.

3. It is hardly necessary to mention that such philosophers as Perry, Dewey, Parker,
and Laird have, in recent years, launched a forthright attack upon the provincialism
of traditional moral theory.

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

children and slaves are very profoundly affected by the answers that are
given to such problems.

The poverty of modern moral theory is apparent if we contrast with
the content of contemporary morality such moral codes as are embodied
in the writings of the Pentateuch, in the dialogues of Plato, or in the
scholastic summas. Each of these historic codes makes a resolute and
straightforward attempt to deal with all the basic problems of human
conduct that a given civilization proposes. Each of these codes seeks to
define the place and function of the artist, the property-owner, the
teacher, and the ruler. In none of these codes is an attempt made to
justify modes of conduct fraught with human joy or suffering, after the
manner of modern moralists, by assigning the subject to a "non-moral"
realm of art, science, industry, or statesmanship and refusing to discuss it.

It would seem that modern moralists have suffered a loss of nerve.
A monarch fearful of revolt may secure absolute obedience by com-
manding his subjects to do as they please. Modern ethics asserts its
sovereignty by issuing to the owners of property the unbreakable com-
mandment, Laissez faire. Nor is the morality of laissez faire restricted to
economic realms. So weak is the empire of contemporary ethical theory
that it must needs grant autonomy or near-autonomy not only to the
businessman, but as well to the artist, the scientist, the educator, and the
statesman in fashioning ideals of right and wrong within the various
provinces of human activity. Ideals thus fashioned are class ideals, re-
flecting the narrow interests of professional groups. The ideals of modern
art reflect primarily the artist's appreciation of the technical difficulties
presented by certain materials and of the skill exhibited in their con-
quest, rather than a concern with the significance and value of human
experiences evoked by the artistic creation. The success of economic
enterprise is measured by the standard of entrepreneur's profit (even
when, as in the case of certain public enterprises, the entrepreneur is
trying not to make a profit), rather than by an appraisal of the cost of
human energy and sacrifice that the enterprise demands and the value
of the human interests it serves. Law finds in its own hallowed past and
in the aesthetic harmonies of the legal system itself the touchstones of
criticism which a comprehensive social morality once provided.4 And
each profession in modern society has its own code of ethics which is
primarily designed to lend respectability to the vested interests of the

4. I have elsewhere attempted to analyze the logical difficulties which this narrow
conception of ethics imposes upon law and the social sciences. See Ethical Systems
and Legal Ideals, (1933). The major thesis of this volume is restated, in words of one
and two syllables, in "Modern Ethics and the Law" [above, p. 17].

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SOCIALIZATION OF MORALITY

profession and to protect its members from the just claims of society.
The gradual abandonment by moral theory of its significant social
content has roots deep in the material and intellectual foundations of
our civilization. Chief among the factors which have contributed to the
deserialization of morality must be listed the growing complexity of
industrial civilization, the accelerated rate of social change, and the
submergence of human personalities before the impersonal institutional
forces of modern society.

The Complexity of the Moral Scene

It is natural that the vast complexity of modern life should lead men to
believe that the vision of an integrated social morality is an anachronism
in contemporary civilization. Such, at least, is the belief of those moral-
ists who have remained loyal to the philosophical ideal of wholeness,
and in this loyalty have retreated, step by step, from the realms of
human conduct that bear most deeply the imprints of our complex
social structure. Such, too, is the belief of those who have been faithful
to the moral realities of new and complex social situations and in this
faith have abandoned the philosophical effort to systematize specific
prescriptions for specific social ills.

The complexity of a social system, which engenders intellectual
difficulties for the moral philosopher, operates more directly upon the
springs of moral feeling. The complexity of urban life is revealed in
increasingly minute specialization of human activities. The moral signifi-
cance of the self-supporting farmer's task is clear, the moral values of
success and failure are vivid, and the personal relationships to which
the task gives rise are simple and direct. So with the task of the petty
artisan or the family physician. The moral overtones of action are less
clear to the mill-worker, the seed salesman, the stockholder of an in-
dustrial corporation, the nose and throat specialist, or the uniformed
orderly of a great hospital.

Increasing division of labor, which marks the growth of civilization,
destroys not only the traditional moral patterns of individuals' working
lives but as well the communities of experience out of which moral
attitudes grow. Morality is a function of uniformity. Envy and contempt,
rivalry and emulation, sympathy and antipathy, praise and blame, pre-
suppose a community of interest and experience. Those whose lives are
spent in unrelated occupations meet in a meager community, and the
shrinking of morality to rules of sportsmanship and good manners, in
certain social groups, testifies to this meagerness. Increasingly the stand-

THE PHILOSOPHY OF AMERICAN DEMOCRACY

ards which demand men's effective allegiance are standards reflecting the
special interests of small homogeneous occupational groups rather than
the interests of a whole society.

Morality and the Tempo of Industrialism

If morality is, in general, dependent upon uniformity, it is peculiarly
dependent upon temporal uniformity. Just as uniformity of social posi-
tion or occupation leads to the compulsive attraction of the "normal"
or "natural," so uniformity in time lends the force of tradition, reverence,
and loyalty to moral beliefs. This is not simply a consequence of super-
stition and inertia. Time is required for the analysis and verification of
moral beliefs.

The morality of any age, then, is likely to be most firmly fixed in
those realms of life which are least affected by social change.

The simple, enduring problems of personal relationship maintain
moral grandeur while changing historical conditions seem to make
questions of economic, political, or cultural policy ephemeral. The
prestige of an historic tradition can attach only to those beliefs that we
share with a remote past. Unfortunately the scale of moral problems
and the required range of moral vision have been comparatively narrow
in the simpler societies from which we derive our moral traditions. Jesus
will bring back to life a poor unfortunate whose death has come to his
attention, but it would be entirely inconsistent with the biblical Jesus
to expect him to bring back to life a large number of people who have
died in a village he has not visited, or to prevent the death of a
large number of children by teaching people how to pasteurize milk. To
the extent that modern ethics is affected by the tradition of Jesus, there-
fore, it tends to consider larger social problems as unimportant and
unreal, and to focus moral criticism upon the personal behavior of
individuals rather than upon social institutions. Moral aspects of the
economic order are dismissed as Jesus dismisses the indignant protests
of his disciples when a woman anoints his head with a costly perfume.
To the objection that for the price of the perfume a multitude of the
poor might have been fed, Jesus gives the characteristic individualist
answer: "ye have the poor always with you, and whensoever ye will ye
can do them good; but me ye have not always." 5
5. Mark 14:7.

34*

SOCIALIZATION OF MORALITY

Morality and Slavery

Most people, no doubt, are uninterested in broad social questions be-
cause they have no voice in the decision of such questions. Interest
would be misplaced energy. A slave class will not develop an ethics
relevant to the problems of social policy which its masters face.

Instructive is the appeal which the morality of primitive Christianity
made to a people without political power. Distinguished from the earlier
Jewish morality, with its detailed analysis of social and economic re-
lationships, primitive Christianity made a virtue o£ the necessity under
which its audience labored to take no thought for the morrow, and to
render unto Caesar that which was Caesar's. To the extent that people
today feel impotent in the realm of social affairs they are ready to
accept the narrow limitations of a moral code that ignores the funda-
mental problems of government, economics, and culture. And this feel-
ing of impotence is almost universal in contemporary society, not only
in the ranks of the oppressed, but even among the rulers of society, who
are themselves the puppets of collective forces they cannot understand.
Increasingly the significant questions of modern life seem to be decided
not by human beings but by machines and institutions and impersonal
economic laws that wreak their will upon an enslaved human race.

II. THE TASK OF MORAL PHILOSOPHY

The task of modern ethics would be hopeless indeed did not the very
forces which have destroyed the morality of individualism provide the
basis of a new integration of human interests. Neither the complexity of
modern civilization, nor the rapidity of its material transformations, nor
the shifting of significant human choices from a personal sphere to a
collective sphere, obstructs the way to a socialized morality. Rather each
of these factors in the disintegration of traditional morality presents
itself as a material element in the reconstruction of moral theory.

The Simplification of a Social Order

The belief that a universal morality can arise only out of a simpler
society than our own is a half truth. What makes a society simple is a
moral theory. The complexity of modern society is not an objective
fact. Complexity is always relative to the starting point of analysis.
The description of planetary movements was an extremely complex

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

affair when the earth was used as the point of reference, and became
increasingly complex as observations became more accurate, but the
complexity vanished with the substitution of the sun as a point of
reference. Modern civilization is oppressive in its complexity if we con-
ceive its movements in terms of individual liberties, individual duties,
and individual personalities. It may come to seem a rather simple affair
when analyzed in terms of social functions.

The complex specialization of human activities ceases to be a divisive
force in the social structure when specialized functions are coordinated
in a great social effort. Politicians, artists, and steel workers may have
little of importance to say to each other in the nations of the West.
That is not true in Soviet Russia.

The coordination of diverse social functions in an integrated moral
order informs each vocation of civilized life with a social ideal and
a clarified moral task. Specialization ceases to be an escape from the
domain of morality; it may become a condition of social usefulness. In
a collective morality there is more room for specialization, for variation
from common norms, for the development of rare human potentialities,
than there can be within an individualistic morality, just as there is
greater scope for diverse talents in the collectivity of a baseball team
than in a field of nine runners.

Nothing, then, could be further from the truth than the spectre of
men emerging into standardized robots under a socialist order of society.
Social harmony no more requires that each individual play a simple tune,
much less the same tune, than does orchestral harmony. The robot today
is the product of an individualist morality that impoverishes the human
spirit by denying it participation in the vital collective forces of modern
civilization. Genius is achieved not by Robinson Crusoes fired with the
individualistic passion for self-sufficiency, but by men who can rely upon
their fellows to perform tasks for which they are not fitted and are thus
freed and helped to fashion rare gifts. Heretofore such social cooperation
as genius demands has been assured only by the natural communism
of a harmonious family life or by the fortuitous favor of society's rulers.
A socialist society makes universal the material security which the
flowering of the human spirit requires as a condition of existence. It
destroys the adventure of men's uncertain search for food, and destroys
as well the individual initiative that finds expression in the course of self-
aggrandizement, but it destroys these things to make room for a higher
adventure and a wider initiative.

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SOCIALIZATION OF MORALITY

Moral Sanctions in a Changing Society

The shadow of transitoriness which changing material conditions cast
over the established traditions of morality is as subjective as is the appear-
ance of complexity in our social order. Indeed, change is no more than
complexity along the dimension of time.

Change is disconcerting only where there is no goal. The loss of
moral moorings which early capitalist industrialism brought to the
nations of the West, exemplified in such movements of despair as the
machine-wrecking of the Luddites and the more sophisticated glorifica-
tion of the escape to the primitive, stands in sharp contrast to the
purposeful industrialization of Russia under Soviet rule. Material
change, far from being a disruptive force, may itself become the stable
axis of a morality oriented to the dynamic forces of industrial civiliza-
tion. If revolutionary changes in the material bases of life make the
moral traditions of the past irrelevant to the contemporary world, these
changes, come to consciousness, create a revolutionary morality that is
not dependent upon the sanctions of precedent and inertia, that finds
adventure, hope, and faith in every essential break with an outworn past.

Morality and Power

Finally, the increased range and scope of moral problems in the modern
world, which seems to rob the individual of power and responsibility,
itself creates the basis of a new integration of human values. The ap-
parent impersonality of the forces that mold contemporary civilization
reflects only the meagerness of personalities integrated by an individual-
istic formula. This poverty of personality is itself overcome by a more
comprehensive social morality. Such a morality substitutes for the in-
dividualistic defense of man against society the Aristotelean thesis that
man finds the completion of his personality in society. Only in so far
as man consciously identifies his powers with wider social forces, and
participates in the responsibilities, the purposes, and the achievements
of society, does he lay valid claim to the values of civilization.

The sense of moral impotence in the presence of overwhelming social
problems derives from the attempt to attack these problems with the
weapons of a narrow personal morality. Personal kindliness, however
adequate to adjust the relations between a master and a domestic slave,
is pathetically inadequate in the relationship between an industrial
corporation and its employees. To that relationship morality can be

345

THE PHILOSOPHY OF AMERICAN DEMOCRACY

relevant only if morality incorporates the social organization of knowl-
edge, which is science, and the social organization of human powers and
purposes, which is politics.

Socialism, as the fulfillment of democracy, offers all men the power
out of which moral responsibility is born. It lifts this power and this
responsibility from fields which become increasingly trivial to the
heights of self-conscious control over society's destinies. It shifts the focus
of moral values from traditional problems of retail charity and retail
murder, courtesy and sexual decency, personal thrift and prudence, to
the long-range problems of peace and war, the organization of industry
and government, the growth of science and culture, and the material
conditions of human existence. Redefining the moral virtues and vices,
it replaces the heroes, saints, and gods of the past with new exemplars
of the good life, as in Russia, for instance, the figure of Christ, who
deals with all things in an intimate and personal way, has been re-
placed by the figure of Lenin, the exponent of statistical morality. Cre-
ating new moral forces to govern the institutions of industrial civiliza-
tion, socialism sublimates the passion of personal envy to the passion for
social justice, turns human pride from the vision of personal success to
the vision of collective achievement, and endows the ideal of universal
brotherhood with the warmth of personal friendship. Out of the pettiness
of personal fear there may be distilled hatred of the forces of despotism,
love of liberty, and courage for battle. The triviality of human effort is
man's fate only in a planless world. In the collective integrations of
socialist society, and in the struggle for a socialist society, human power
and human dignity are reborn.

III. THE METAPHYSICAL BASIS OF SOCIALIST MORALITY

Analytically the distinction between individualist and socialist morality
lies in the unit of integration applied to conflicts of human interests.
Individualism assumes the task of integrating the conflicting desires of
a person into a harmonious pattern of satisfactory living, through the
disciplined subordination of momentary impulses to more permanent
purposes, through the enlightenment of selfishness, and through the
cultivation of a concern for one's future that eliminates the occasions of
regret for one's past. The terms of this integration — remorse, temptation,
conscience, sincerity, self-respect — do not stretch beyond the individual
life. Traditional morality assumes that a life so integrated is necessarily
socially valuable, and it is on the basis of this assumption that individ-
ualism ignores or minimizes the role of social control and the scope

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SOCIALIZATION OF MORALITY

of social responsibility and sanctifies selfishness if only it is "enlightened."
This assumption may be roughly true within a social structure in which
an individual's conduct is comparatively unimportant to his fellows
or in which human equality and the simplicity of human relations make
the Golden Rule a dictate of practical prudence. But as the material con-
ditions of life lend increased importance to the influences of individual
conduct upon other individuals and cast these influences in forms that do
not permit of payment in kind, it ceases to be a matter of practical pru-
dence to act as one would have others act. Indeed in a society of
specialized functions this ceases even to be a meaningful possibility. It
becomes increasingly obvious in the contemporary world that the in-
dividualist moral values of consistency, prudence, courage, and en-
lightened selfishness do not guarantee a life of social value. Self-mastery
attained through these traditional virtues may turn a life that is inspired
by class or racial hatreds into a tragic catastrophe for the human race.
The moral significance of human conduct comes increasingly to demand
social standards of measurement.

Traditional individualism denies not only the need of a social integra-
tion of human interests but the possibility of such an integration. It
assumes that the calculus of prudence is not only a major part of virtue
but an eternal and objective fact. This assumption can scarcely with-
stand the analysis of psychological and anthropological science. En-
lightened selfishness, far from being a matter of instinct, is instilled in
human beings only through an arduous process of education dominated
by the moral imperatives of individualism. The untrained child, no
less than the martyr, the soldier, or the animal defending its young, may
sacrifice its own future advantage to another's urgent need. Calculating
selfishness is a product of individualistic morality. In a socialized
morality which submerges individual purposes in more comprehensive
social ideals, the significance of the whole concept of selfishness vanishes.

The traditional philosophy of individualism defends the immutability
of human selfishness by a metaphysical dogma rather than by any con-
vincing scientific evidence. The dogma that the individual is an ultimate
unity and society an ultimate plurality predetermines that all the
adjustments, balances, and compromises which are the substance of
morality must take place within an individual life, that, for instance,
the socially ordained sacrifice of one man's life or property for the
benefit of others is unjust, though the individually ordained sacrifice of
today's pleasure for tomorrow's, within a single life, may be commend-
able.

To this metaphysical dogma, the philosophy of socialism opposes a

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

wider perspective, which reveals something of the unity of the individual
in society itself and something of the plurality of society in the in-
dividual life.

Every human life may be viewed as a society of moments, each
moment with its distinctive focus of interests, each with capacities for
hating, loving, or disregarding other moments interconnected by physi-
cal relationships that do not guarantee a harmonious integration of
interests, and attaining that integration only through adherence to norms
of personal conduct that are the fruit of hard-won human wisdom.
Loyalty to an ideal or pattern of life distinguishes an individual, a
character, from a temporal succession of human activities related only
by the fact that they occur in a single biological organism. The possi-
bility of a social integration of conflicting interests is substantiated by
the integration of conflicting interests in an individual life.

The power of an individual, that is to say his ability to retain his
integrity under pressure and to exert pressure in turn to mold other
lives, depends upon the effectiveness of the moral integration which
subordinates successive immediate interests or desires to long-range pur-
poses. It is equally true that the strength of a society derives from
the moral integration of the diverse interests of many individuals, and it
is becoming increasingly clear that a social order which does not secure
such internal harmony must sooner or later give way to a more com-
plete, stable, and effective integration of human desires.

The development of a socialized morality is therefore more than an
ethical desideratum. It is a practical postulate of the continuance of
modern civilization. The needs of civilization impose upon contempo-
rary moral philosophy the task of integrating the life of society as tra-
ditional morality has integrated the lives of individuals. Ultimately a
universal or social morality can rest only on a classless culture and a
socialized conscience. The task of laughing down the provincialities of
contemporary class culture, of breaking the control of art by monopolistic
groups, of liberating taste and enjoyment from the slavery of pecuniary
and competitive canons, of exposing the provincial ethical assumptions
that bar the road to useful thought in the fields of economics, juris-
prudence, and sociology, of liberating human imaginations so that men
may see through complex economic and political structures to the joy
or suffering they create, of dramatizing the institutions of society so that
they evoke the forces of love and hate which have been traditionally
directed towards personalities, of widening human loyalties to the point
where one may look to his own future impersonally and find in a social
ideal inspiring patterns of life, these are not tasks for the Sunday

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SOCIALIZATION OF MORALITY

School moralists of the individualist tradition. In these tasks every
realm of human culture must make its revolutionary contribution.

To speak thus of socialization in terms of the human soul is not to
deny the physical actualities of technological evolution and class strug-
gle, but only to deny the claim that irrational forces monopolize
reality. It seems to me more useful and more nearly true to view the
socialization of institutions and the socialization of the human soul as
parallel aspects of a single task. For in the last analysis the human soul
is neither the master nor the slave of its environment. The human soul
is its environment, seen from within.

349

Government and the Social Contract:
Ethical Evaluations in the Law

AN INCREASING number of law school students will be entering the legal
service of federal, state, or local governments on graduation. The ex-
pansion of government legal services is, I believe, not a result of any
particular administration or any temporary economic depression. The
expansion of government is a product of the same technological forces
that result in the expansion of our large corporations. Government must
expand when financial and industrial institutions expand because govern-
ment ceases to be government when any other organization is larger
than the government. And so I think that the younger generation of
lawyers is going to have more to do with government law and govern-
ment procedure than its teacher had. Those young lawyers who are not
actually in government service will be running into government con-
tracts, licenses, administrative hearings, and so on, to an ever increasing
extent, and in all this work it will be keenly important whether or not
they "see the woods for the trees/' whether they lose heart when the
trail seems to go in the wrong direction, or whether they know that it
turns to detour around a swamp.

There are, of course, a good many theories about the nature of govern-
ment that seek to illuminate the details of actual government, and I
shall not go into a boring catalogue of these rival theories. It is not
necessary to kill off all conflicting theories in order to prove the virtue
of the social contract theory of government. Within a limited field, two
inconsistent theories can be true.

There is a group of stars that certain peoples have looked upon as a
Great Dipper. Others have seen in these stars a bear, and still other
peoples have seen an old woman with a broken back. These theories are
absolutely inconsistent. Nothing can possibly be at one and the same time

The major part of this paper was delivered as a lecture at the Eastern Law Students
Conference, at the New York University School of Law, 1936, Prof. Elliott E. Cheatham,
Presiding.

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GOVERNMENT AND SOCIAL CONTRACT

a dipper, a bear, and a woman with a broken back. Yet each of these
theories, each of these pictures, serves equally well to group certain
stars in a useful recognizable way from which it is possible to calculate
directions if one happens to be in the middle of a lake on a moonless
night.

So one will frequently find that inconsistent legal theories are equally
true as applied to a limited set of concrete situations. I shall claim no
more than this for the theory of the social contract: That it does
illuminate a large part of the everyday business of government. The
social contract theory presents government as a process of bargaining,
a process of give and take, a process in which service is exchanged for
loyalty, a process in which statesmanship is an ability to find a basis of
compromise and mutual agreement in a situation which seems to be a
welter of irreconcilable views and desires.

This picture of government differs measurably from two other current
pictures of government. One of these is the picture of government as a
policeman. Government gives orders. Subjects obey or disobey. Those
who disobey may or may not be punished. The orders of the policeman
are, in a democratic state, the will of the majority. This picture of the
sovereign state is a very useful one for certain purposes, but it fails
utterly to explain the diversities within government. It fails to explain
divergences between legislative, executive, and judicial branches of
government, between different bodies, departments, divisions, bureaus,
committees, and officers within these bodies. The theory of the sovereign
state imports an artificial unity into the conception of government. It
does not do justice to the fact that government is a microcosm which
reflects all the divergent forces of the society outside, not only the will
of the majority but the will of many overlapping and conflicting minor-
ities, each of which finds a spokesman in some governmental agency.

There is a second popular picture of the state with which I should
like to contrast the social contract picture, and that is the very popular
picture of the state as a disease. That is a very ancient and respectable
theory in this country. The word "politics" has a bad smell; the word
"politician" is even worse. The trouble with America is: We have too
many laws. Government must be circumscribed because it is contagious.
If we don't nip it in the bud, when it goes into the power business,
it is likely to spread into the business of mining coal or baking bread,
and where would we be then? So our modern anarchists on editorial
pages "whoop it up" for an early adjournment of Congress. In many
states we do not allow our legislature to meet more than once in two
years. We all howl about taxes. We say that men can't be trusted with

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

power, that therefore private corporations should not be regulated.
We say that competition is a good thing, and that therefore the govern-
ment should not compete. We say that profits are a good thing, and that
therefore the government should not undertake any profit-making activi-
ties, but should restrict itself to those businesses where nobody can make
a profit, such as free education, road building, and police services. This
thought is nicely expressed in a circular letter prepared by a solicitor
for the English Banking Association during the Civil War and sent to
American Bankers. I quote only two sentences:

Dear Sir: It is advisable to do all in your power to sustain such
prominent daily and weekly newspapers, especially the agricultural
and religious press, as will oppose the issuing of greenback paper
money, and that you also withhold patronage or favors from all ap-
plicants who are not willing to oppose the Government issue of
money. Let the Government issue the coin and the banks issue the
paper money of the country, for then we can better protect each
other.

Undoubtedly the theory that the state is a disease has a certain element
of truth. At least the state is an organ of society, which reacts to all the
diseases of society.

The theory I propose to defend does, I think, illuminate the problems
and details of the business of government more adequately than either
the "policeman" theory or the "disease" theory. The theory of the social
contract, as advanced by Epicurus, Hobbes, Locke, Rousseau, and Kant,
is the theory that government arises out of agreements between indi-
viduals who surrender their liberty of action, or some part of that
liberty, in order to escape the dangers of liberty, that is to say, the dan-
gers of one's neighbor's liberty. All of you, I suppose, have studied politi-
cal science, and you know that theory of a social contract is dead, very
dead. It was stabbed to death by Hume, strangled by Bentham, drowned
by Hegel, and drawn and quartered by all Anglo-American political
scientists since Austin. But let us see whether the corpus delicti can still
speak on its own behalf.

The critics of the theory that government arose out of a social contract
generally think of the theory in absolute historical terms. Once upon
a time there was a state of nature in which there was a war of all against
all and life was nasty, brutish, and short. So all the people got together
and entered into a contract to give up certain bad practices and elect an
umpire and obey certain laws; that is how we come to live under a
sovereign.

35*

GOVERNMENT AND SOCIAL CONTRACT

Conceiving of the social contract theory in these terms, critics of the
theory have asked, "Where are these contracts? In what language are
they written? What are their terms? What is the consideration? Where
does one get specific performance?"

These are usually asked as rhetorical questions. For if the political
scientists who have asked such questions were anxious to know the an-
swers, they would not have had much trouble in finding actual contracts
setting up governments. Let me put into evidence a few exhibits:

Exhibit A.

In the name of God, Amen. We whose names are underwritten, the
loyall subjects of our dread soveraigne Lord, King James, by the grace
of God, of Great Britaine, Franc, & Ireland king, defender of the
faith, etc., haveing undertaken, for the glorie of God, and advance-
ments of the Christaine faith, and honour of our king & countrie,
a voyage to plant the first colonie in the Northerne parts of Vir-
ginia, doe by those presents solemnly & mutualy in the presence of
God, and one of another, covenant and combine ourselves together
into a civil body politick, for our better ordering 8c preservation 8c
furtherance of the ends aforesaid; and by vertue hereof to enacte,
constitute, and frame such just and equall lawes, ordinances, actes,
constitutions, and offices, from time to time, as shall be thought most
meete & convenient for the general good of the Colonie, unto which
we promise all due submission and obedience.

In witnes whereof we have hereunder subscribed our names at Cap-
Codd the II of November, in the year of the raigne of our soveraigne
lord, King James, of England, France, & Ireland the eighteenth,
and of Scotland the fiftie fourth. Ano: Dom.

Exhibit B in the defense of the social contract is familiar to all. It
begins:

We, the people of the United States, in order to form a more perfect
Union, establish justice, insure domestic tranquility, provide for the
common defence, promote the general welfare, and secure the bless-
ings of liberty to ourselves and our posterity, do ordain and establish
this Constitution for the United States of America.

It ends with the signatures of thirty-nine signers and one witness, and
includes a provision for the ratification of the act of these thirty-nine
agents by the electorates of the various independent American states, and
i. Collections of the Mass. Hist. Soc., 4th series, 5, 89-90.

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

the proviso that no state should be bound by the agreement except in
consideration of eight other ratifications.

The third exhibit has gotten lost, and I will have to offer secondary
evidence. Back in the Middle Ages, you know, when a man found anarchy
too oppressive, he would select as powerful and reasonable a sovereign
as he could find in the neighborhood and enter into a compact, in which
he knelt before the sovereign and swore fealty, thus becoming vassal
to the lord, who in turn promised protection. A certain interest in the
land was surrendered by the vassal to the lord, and certain payments
of one sort or another were promised. Since money was scarce, these
payments were made, as a rule, either in agricultural or military service.
In the tenure called "frankalmoign," the payment would be a certain
number of prayers said every year for the soul of the lord. In addition
to these services or offerings, the vassal bound himself to submit to the
lord's court in various types of litigation. On the other hand, the lord
contracted to give the vassal the essential police services of government,
and usually agreed not to assign his own property interests without the
consent of the tenant. You have here, I think, all the essentials of a con-
tract, a contract in this case which creates governmental relations, in
strict accordance with the traditional notion of the social contract.

This is answering the critics of the social contract theory in their own
terms, and upon their own interpretation of that theory. But I think
a more reasonable interpretation of the social contract theory would not
regard the social contract as accounting for a sudden creation of govern-
ment ex nihilo. Government is not usually created that way. Government
regularly grows by piecemeal accretion and development, like language,
and the social contract theory of government ought to enable us to under-
stand not how government first arose, in the unknown past, but rather
how it is arising today. Government is something that we see in the proc-
ess of creation all about us. Every international treaty, every new type of
government regulation, indeed every statute and every judicial decision
is a part of the process through which government comes into being. We
have government in many fields today in which there was no government
twenty years ago. A theory of government, then, should explain not what
happened in an unknown past, but what is happening before our eyes in
the world about us. The social contract theory fills this role a little more
adequately than we are inclined to suppose. And incidentally, it is in this
light that Hobbes, Locke, Rousseau, and Kant presented their theories,
not as explanations of remote historical origins, but as schemes for inter-
preting the actual contemporary process of government.

Government involves laws and submission to laws; it involves citizen-
ship, jurisdiction, and bodies of officials. These institutions and relation-

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GOVERNMENT AND SOCIAL CONTRACT

ships we find today in certain fields where we could not have found
them a century ago or a year ago. How have they arisen? How are they
arising today? And how do they manage to endure when they do arise?
Let us consider the social contract theory, for example, as an attempt
to answer these practical questions.

(i) Consider what happens when a corporation is created. Obviously
a corporation involves a governmental relation between individuals and
a state or nation. Just as the vassal promises fealty to the lord, promises
submission to the jurisdiction of the lord, and promises certain pay-
ments, in exchange for the duties of sovereignty, so the modern corpora-
tion promises submission to the law and jurisdiction of the charter-
issuing state, and makes certain payments to that state, in exchange for
the protection which that state affords in shielding the incorporators
from liability for their debts, etc. Here, certainly, is government arising
out of contract. I do not see how one can have a realistic understanding
of modern corporation law except in the economic terms of competition
and bargaining. A corporation shops for a sovereign in much the same
way that it shops for its office supplies. Let me quote a few of the adver-
tisements which Ripley collects in Main Street and Wall Street^ which
illustrate the nature of competition among prospective sovereigns for
the homage and fealty of corporations.

Exhibit D, advertisement in Colliers, 1908:

Incorporate in Arizona, costs less than elsewhere, advantages are
worth thousands. Transact business anywhere. No tax in Arizona.
No stock subscriptions required before incorporating. Any kind of
stock may be issued and paid up in property, leases, or anything
of value, and made non-assessable. No public statement and no
books need be kept for public inspection anywhere. Stockholders
exempt from liability if our form is used . . . Companies incor-
porated same day we receive reasonable deposit on account and
telegram stating name, capital, number of shares and names of first
Directors. Incorporation better than partnership. Send for our latest
revised pamphlet . , . Stoddard Incorporating Company, Box 3-7,
Arizona.

Exhibit E, from a Boston paper:
This beats New Jersey

Charters procured under South Dakota laws for a few dollars.
Write for corporation laws, blanks, by-laws, and forms to Philip
Laurence, late Asst. Sec. of State, Huron, Beadle Co., So. Dakota.

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THE PHILOSOPHY OF AMERICAN DEMOCRACY
Exhibit F, advertisement of a Delaware company:

To facilitate the business, save time and, if desired, to prevent pub-
licity in obtaining your charter, we will furnish the three incor-
porators from this office, who will attend to the filing of the original
certificate of incorporation, the recording of the certified copy, and
will then meet in our office and hold the first meeting of incorporators
and elect or select directors who may meet in your city, elect officers,
and proceed with the business of your company.

You see how closely the economic technique of incorporating resembles
on the one hand the feudal tenurial contract, and on the other hand the
modern commercial contract of sale. Incorporation and the whole body
of corporate law that derives from the act of incorporation is a contract
between the state and the incorporators. The incorporators, being busi-
nessmen, give the contract to the highest bidder: You can still say, if you
please, that corporation law owes its validity to the state from which it
proceeds. But the fact of the matter is that the corporation laws of cer-
tain states are dead letters, because people won't incorporate in those
states. It always takes two parties to make government: one party that
will govern and one party that will consent to be governed. Without
such consent there is no government.

(2) The kind of competition for patronage that we find among the
states with regard to the transaction of incorporation we find in an
equally dramatic form with regard to the transaction of divorce. If we
analyze the government of Nevada, we find that a large part of the law
and legal machinery and a fairly large part of the citizenry are based upon
the advantages which Nevada offers in the way of easy divorce, a govern-
mental act for which many people are willing to pay a good deal of
money and submit to much unpleasantness. Recently, I believe, Arkansas
and a few other states have underbid Nevada in the matter of residence
requirement, and Nevada herself has entered the price-cutting war and
reduced the residence requirement.

(3) The same type of competition exists with respect to inheritance
and income tax laws, and uniform state laws in these fields would prob-
ably seriously reduce suburban realty values in those parts of Connecticut
and New Jersey that are available to New York businessmen. The cheap-
est state for dying is Florida. The constitution of Florida prohibits all
inheritance taxes as well as all income taxes.

(4) The business of money-lending finds its most congenial home, con-
genial, that is, for the money-lender, in Maine, which has no usury laws.
Accordingly, one who contemplates borrowing money from what appears

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GOVERNMENT AND SOCIAL CONTRACT

to be a New York citizen or corporation is often surprised to find that
the individual or corporation is only the agent of a Maine post-office
box, and that the contracts of loan must be mailed to Maine for signing,
after which the New York courts will enforce the demands of the money-
lender.

(5) All types of tax laws, industrial and social legislation, marriage and
divorce laws, and a hundred other kinds of legislation are subject to the
economic laws of supply and demand and reveal the ordinary phenomena
of competition, advertising, monopoly price, etc.

(6) What is true as between the states of this country is to a certain
extent true of the relations among different nations. If Canadian taxes
and American tariffs are more bearable than American taxes and Cana-
dian tariffs, the Campbell's Soup Company moves to Canada. Capital,
despite all its patriotic nationalism, combats every project for industrial
legislation or increased taxation with the threat to run away from the
country, and in the last few years, we have seen a large number of
American businesses carrying out this threat. In more general terms, we
can say that a country which promises stability and protection of private
property will attract a large share of the world's financial dealings to its
sovereignty. This may involve actual choice of location of factories and
stores, or it may involve the centering of financial operations in one na-
tion rather than another, or it may involve merely a formal choice of
sovereigns, as where a contract of sale is entered between a Frenchman
and an American specifying that French law is to control the interpreta-
tion and enforcement of the contract, a specification which the American
courts will usually follow.

(7) Competition between sovereigns takes a peculiar form in our federal
government, where the relation between state and nation is becoming
increasingly one of mutual consent. The regulation of aviation, accord-
ing to the written constitution, is one in which the individual states are
sovereign, except when the aviation crosses state lines. Nevertheless, most
states have agreed to shift control over all aviation to the federal govern-
ment. This they have frequently done by passing a law to the effect that
all federal licenses shall be endowed with state validity. Similarly many
states have laws giving state force to game laws passed by Congress relat-
ing to migratory birds. Education is entirely a state affair according to
the written constitution of the United States, yet one finds the United
States government appointing professors of military science in private
and state universities, and controlling education in many other ways.

Why is it that a state surrenders sovereignty over education, or over
road-building, to the federal government? Usually for a quid pro quo,

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

in the form of federal grants or subsidies. A state that is poor, whether
because some foreign conqueror collects its taxes, or because a federal
Supreme Court holds its taxes unconstitutional, or simply because its
inhabitants are poor, is under pressure to sell portions of its sovereignty.
Mexico, or Denmark, will sell some of its territory to the United States,
New York will sell control over education to the federal government,
Delaware will sell the power to regulate corporate transactions to a group
of corporations or corporation lawyers. I do not wish to suggest by these
examples that there is anything necessarily iniquitous about the buying
and selling of government power. Obviously it is to the advantage of all
that the federal government should pay for the building of important
roads in states that cannot themselves afford to pay. And obviously the
free agreement between state and nation to appoint the same individual
as a federal food inspector and a state food inspector is an efficient ar-
rangement which no one can seriously object to. These random examples
that I have given are typical of thousands of arrangements which have
more or less escaped scientific notice until recently because it has been
felt that buying and selling governmental power is something disrepu-
table.

(8) To a certain extent this economic analysis can be carried into the
relations between the state and other institutions, such as the Church, or
private business, or the family. If state police will not do the jobs that
certain business interests want done, private armies will be created for
the purpose. If people prefer the authority of the state to that of the
family or the church, the scope of government necessarily broadens.

Without any further examples, I think it is clear enough that govern-
ment is a business, and that the business of government rises and falls in
volume and shifts in direction much as does the business of R. EL Macy
and Co., i.e., according to the laws of supply and demand, and in ac-
cordance with the competition of the market-place. The more a state
offers that cannot be obtained more cheaply from another state or another
institution, the more it can demand in return from its subjects.

To a certain extent the fundamental similarity between governmental
transactions and private transactions is obscured by the fact that govern-
ment insists upon a peculiar formalism, which is denied to other institu-
tions. A government order or statute is in form a command issued to
subjects, rather than an offer or a proposal for a contract. A tariff bill
does not read: "Whereas the Senator from Louisiana, hereinafter called
the party of the first part has agreed to vote for a tariff on tin, in con-
sideration of the agreement of the Senator from Missouri to vote for a
tariff on sugar/' But there are many aspects of government in which we
do find contractual form, as well as contractual substance.

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GOVERNMENT AND SOCIAL CONTRACT

What is an oath of allegiance, such as we require from persons who
wish to become citizens, but a promissory consideration for the counter
promises of protection by the United States, which may be found in
various constitutional amendments and laws? The majority opinions of
the Supreme Court in the Schwimmer case and the Macintosh case show
that the promises exacted of naturalized citizens are regarded as rep-
resentative of the duties of native-born citizens who do not formally sign
the social contract in the presence of witnesses.

Something of the contractual form carries over into the remedies which
the citizen has when the state violates the social contract. Is not the tax-
payer's action really a suit for the specific performance of the social con-
tract? If a government agency, the Board of Estimate and Apportion-
ment, for example, exceeds its proper powers, it is deemed responsible
not only to the state from which theoretically it derives its powers, but
also to the individual taxpayer, who may enjoin expenditures to which
he has not constitutionally assented. The suit of an individual stock-
holder to restrain ultra vires acts of the corporation is supposed to be
based upon breach of contract. Surely the same theory must fit the tax-
payer's action or the suit to enjoin unconstitutional legislation.

The notion of jurisdiction has always involved a large measure of con-
tract theory. Today there are many situations in which a court will refuse
to adjudicate the rights of individuals or corporations unless consent to
service of process is secured. Ordinarily, the court of one state will not
hear a case against anyone who has not been served or taken a summons
in that state. Consider the problem involved in suing a non-resident
automobilist who has departed from the state of the accident before be-
ing served with a summons. Certain states have enacted laws declaring
that in driving into the state, an autoist automatically appoints the local
Secretary of State as the autoist's agent to receive service of civil process.
The Supreme Court has held that this subconscious agreement to accept
service through an agent is a valid contract, based on proper considera-
tion, since the state might refuse the use of its highways to the non-
resident autoist, and is conceived to permit the use of the highways in
exchange for the appointment of the Secretary of State as agent for the
service of process. On this same analysis, laws prescribing that foreign
corporations shall under certain circumstances be deemed to appoint the
Secretary of State agent for service of process have, in several instances,
been held unconstitutional because the state did not offer a quid pro quo
that would be good consideration under a private contract.

This conception of the state's impotence to deal with individuals who
have not agreed to be bound by the decisions of its courts runs back to
the beginnings of law. In early law as in modern commercial arbitration

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

there is regularly no action possible unless the defendant agrees to be
sued. Outlawry is the state's only retaliation against an individual who
refuses to accept the jurisdiction of its courts. If you do not accept the
bitter end of the jurisdiction relation, you may not invoke the sweet
end. If others harm you then, you may not appeal to the state. One finds
the same insistence upon consent as a condition of jurisdiction when
trial by jury was first introduced. This was a novel thing, and a defendant
could not be "put upon the country" unless he waived trial by battle or
ordeal (which was still possible in the second decade of the nineteenth
century). But the sheriffs found ways of inducing consent to trial by
jury. Instead of denying the reluctant defendant the use of the highways,
they forced him to use the highway, bound in a cart with rocks on top
of him, bumping along the early English roads until he changed his mind.
This was politely called peine forte et dure, and many defendants died
under it, thus preserving their land and chattels for their families, rather
than consent to a form of trial that the state would not impose by
force.

These are dramatic examples of government resting on the consent of
the governed, and deriving either its actual force or its legal validity from
that consent. More important than these dramatic examples are the daily
facts of government. Most governmental action is founded on compromise
agreements between interested parties. Most law cases end in a settle-
ment. Most laws (at least in Congress) are passed by acclamation or by
unanimous consent. The process of government is essentially a process
of compromising, bargaining, trading. We give this process unpleasant
names, such as log-rolling. But there is no more reason to sneer at com-
petition and bargaining in the field of road-building or public education
than in the field of factory-building or salesmanship. The politician or
statesman who finds a way of satisfying what seem to be opposite and
conflicting interests performs a real service in the cause of peace. Gov-
ernment by simple majority rule is practicable only in moments of great
stress. No community can stand the social cost of coercing 49 per cent of
its citizens except on very rare occasions.

I do not mean to deny that there is a coercive element in all govern-
ment. Certainly there is, but it is also true that elements of coercion
enter into private business. In the long run there seems to be no signif-
icant difference on this score between government and business.

The theory of the social contract, then, applied to the facts of his-
tory, is essentially sound. Government is, in large part, a series of ex-
change transactions subject to the ordinary laws of economics, the law
of supply and demand, of monopoly price, of diminishing returns, and
so on.

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GOVERNMENT AND SOCIAL CONTRACT

What of the future? What light does the theory of the social contract
throw upon the development of new governments and new governing
bodies in the generations that lie ahead of us?

To find an actual exemplification of the state of nature today, we
need only look to the field of international relations. We find here clearly
exemplified what Hobbes called "the war of all against all" — a war which
exists at least in potentiality even when the guns are not booming. The
lives of a good many of us will depend upon whether or not this inter-
national anarchy can be surmounted by some form of international gov-
ernment; and if we look carefully, we can see what may be the first begin-
nings of such international government in social compacts between
sovereign states. Whether these beginnings of government will finally
develop enough strength to deal with ordinary disputes between nations
as the state deals with the ordinary disputes of individuals, I do not
venture to say. I do say that all the beginnings of international govern-
ment that we can find today [1936] and all the indications of future
growth follow the lines of social contract theory. In the League of Na-
tions, the World Court, in the growing list of international tariff agree-
ments, and perhaps most clearly in the Universal Postal Union, we find
sovereigns surrendering some of their original independence of action;
and in this process of mutual surrender we have at least the makings
of international government. Of course, we find that the process of
achieving international agreement is marked by all the bickering and
bargaining, bluff and show of force that characterizes ordinary trade,
and we find that not every piece of paper with two names down on the
bottom is a contract. Peace is possible only if it contains adjustments
which both parties find it advantageous to respect.

Let me turn to a second field in which we may hope to see in the gen-
erations ahead some substitution of law and order for chaos. I refer to
the field of economic enterprise. The field of private business and of
industrial relations still exemplifies the war of "all against all." The lives
of most business concerns are, in the words of Hobbes, "nasty, brutish, and
short." Again I think we can say that if law and order is to be introduced
in this field of human activity, it is likely to come through the process of
the social contract. Perhaps we see the first beginnings of industrial peace
and industrial government in the collective contract between a manu-
facturers' association and a labor union. In themselves, the labor union
and the manufacturers' association represent a surrender of the right of
independent action and an achievement of the right of collective security
through mutual submission to a common rule. In 1934, with the NRA,
we saw the hasty beginnings of industrial government in the process of
mutual agreement which built up code authorities with power to legislate

361

THE PHILOSOPHY OF AMERICAN DEMOCRACY

for the respective industries, to tax their members, and, in general, to
behave as governments behave. The code failed to hold, but the pos-
sibilities o£ industrial government, good and bad, became clearer to all
of us.

Let me suggest another way in which government may come to exercise
the same control over production and distribution that it now exercises
over, let us say, marriage and divorce, or retail gambling. Historically,
corporations have always been viewed as creatures of the state. There are
many statements in the opinions of the Supreme Court to the effect that
a state may grant or refuse the privilege of incorporation for any reason
or no reason; that, similarly, a state may deny the privilege of immigra-
tion to a corporation created in another state. Does this mean that a state,
instead of bargaining with incorporators over fees, may bargain about
more important matters? We find that a corporate charter is a contract
between the incorporators and the state. Let us suppose that the incor-
porators put certain social guarantees into the corporate charter they
draw up — agree, for instance, to pay certain minimum wages, to main-
tain certain quality standards in production, to adjust production to
general social needs, and to restrict corporate profits in such a manner
as to safeguard the interests of worker and consumer; and let us suppose
that the state grants to such a corporation special privileges and benefits
in the form of tax exemptions or special credit facilities. The idea is
not fanciful. There is just such an arrangement in New York State in
the limited dividend housing corporations which are exempted from cer-
tain taxes and which are required by the terms of their corporate charter
to rent the houses they build at no more than a maximum price per room
and to restrict their profits to 6 per cent. Here, perhaps, is another basis
on which, through a process of bargaining, a form of government may
develop. I submit then that the theory of the social contract is not a
theory of mythical origins in a remote past, modern political scientists
notwithstanding, but an attempt to explain the growth of government
today and tomorrow as well as yesterday.

As lawyers you will be dealing with legal rules and institutions that
are the crystallized social agreements and compromises of the past. Every
statute, and every rule of the unwritten common law, is a compromise
between opposing interests. To make law or to change law you must put
your eye on the social interests, the social groups, the social values that
will be served by the change, and you must bring the entire organized
force of these groups and the entire weight of these values into the
process of bargaining that we call government.

I suppose that lawyers have never been creators of social ideals. That
is a task rather for philosophers, inventors, poets, artists, educators,

36*

GOVERNMENT AND SOCIAL CONTRACT

agitators, dreamers; but it is the lawyer's highest calling to capture the
dream and to transfer it into the stuff of reality, to bring the ideals of
his age into the concrete material of human adjustments and social struc-
tures. Perhaps the lawyer needs a touch of the poet to pull together the
vague resentments and aspirations of the social group he represents, to
reduce these resentments and aspirations to clear and lucid form, and to
present to the proper forum — court or legislature, or administrative tri-
bunal— a definite and specific demand. But the lawyer needs also the
type of ability we have traditionally associated with the entrepreneur,
the ability to calculate effective demand and the state of the market, to
get the largest return for the lowest social cost.

And so I leave the social contract with you for future reference in your
thinking about law and government. The theory may be, at least, an
antidote to two kinds of false idealism. First, there is the false idealism
that idealizes the established legal order, surrounding it with a halo that
makes all criticism blasphemous. Against this false idealism, the picture
of government as a matter of simple human bargaining, no better and
no worse than the human beings that bargain, has proved an effective
weapon, and will continue to prove an effective weapon.

There is a second kind of false idealism from which the theory of the
social contract may save some of us. It is notorious that Americans ascribe
a magic potency to legislative words. Most of our reformers are a gullible
lot, easily fooled and easily satisfied, precisely because they attribute a
supernatural force to the words of a statute. A statute is passed which, on
its face, prohibits some recognized evil. The same Congress that passed
the statute may refuse to make any appropriations for its administration.
That is possible because those who were interested in the statute never
thought of it in economic terms. The question of law enforcement is an
economic question. Administrative appropriations symbolize the social
cost of government. In thinking of law reform in economic terms, it is
relevant to ask how much enforcement of particular laws do we want,
and how much are we willing to pay for the ends sought. According to
orthodox legal theory, we must enforce all laws at all times, at all costs,
but that is obviously impossible. Each of us would have to be guarded
continuously by at least two policemen. But that does not mean that a
law enforced with, let us say, 20 per cent efficiency is worthless.

I submit that idealism is healthier and truer when it faces the facts
clearly and courageously, sees law and government neither as a disease
nor as a supernatural force but as an ever-shifting balance of conflicting
demands and interests, an idealism that seeks to change law and gov-
ernment by dealing not simply with words and symbols, but with the
actual aspirations and energies of fr -*man beings.

363

Colonialism: A Realistic Approach

THE MOST important task of our generation is that of finding patterns by
which men who differ in race, religion, and economic outlook may live
in peace and contribute to each other's prosperity. This task is not es-
sentially different from that which faced the founders of our Republic.
When Prime Minister Gladstone referred to our federal Constitution as
"the most wonderful work ever struck off at a given time by the brain and
purpose of man," he uttered a judgment in which, I dare say, few of his
countrymen have ever concurred. Indeed, there have been years in our
recent history when it would have been difficult to find many well-
informed Americans to acquiesce in that valuation. Today, however, there
is a growing disposition on the part of the American people to accept this
judgment as a typically British understatement. Perhaps this is because
of the eloquent lectures on government by foreign authorities which have,
in recent years, contributed to the education of the American people. At
any rate, the fact is that under this Constitution thirteen poor and weak
states, divided in race, religion, and economic outlook, no one of them as
populous or as powerful as Bulgaria or Ecuador, have created the most
prosperous and the mightiest nation in the world, while at the same time
the civil rights of the citizens of this nation have, despite minor setbacks
in times of hysteria, been progressively enlarged. It is doubtful whether
the history of the world shows another such chapter of expanding national
strength going hand in hand with expanding freedom and democracy. It
is therefore pertinent for planners of a postwar world who are interested
both in prosperity and in democracy to consider what it was that en-
dowed the Constitution of the United States with its peculiar strength as
an instrument of intercultural integration.

I. ON THE REALISM OF THE FOUNDING FATHERS

With some slight trepidation, I venture to suggest that a chief source of
this strength was the profound political realism, or cynicism, of the people

Published in Ethics, 1945.

s*-:

COLONIALISM

who drafted and adopted the Constitution of the United States, and that
what our thinking about postwar colonial problems most needs is an
effective dose of this classical American realism.

At a time when the science of economics was taking form, at the hands
of Adam Smith, by reason of Smith's willingness to begin with the un-
flattering and rather shocking hypothesis that men who buy and sell are
guided chiefly by motives of private profit rather than by conceptions of
"social welfare" or "just price," the American colonists, taught in the
school of bitter colonial experience, were prepared to make a similar as-
sumption in the field of politics. The basic premises from which their
political thinking and argument flowed were: (a) that human flesh is
corruptible; (b) that power corrupts; and (c) that absolute power corrupts
absolutely. They therefore set about not to devise those forms of govern-
ment which would be most efficient in the hands of good rulers, but
rather to fashion those forms which would be most cumbersome and in-
efficient in the hands of bad rulers. The discrepancies between these two
objectives are of the utmost importance. For it may well be that the form
of government which is most efficient in the hands of tyrants — probably
an executive dictatorship — is also the most efficient form of government
that can be wielded by a wise and benevolent ruler. On the other hand,
a cumbersome system of checks and balances, which has hamstrung some
of the noblest efforts of the few truly great statesmen this country has
produced, has also contributed mightily to the preservation of our de-
mocracy through long periods of bad or mediocre political leadership.
Except for the years of Lincoln, this country did not have a single presi-
dent of outstanding stature during the forty-eight-year period between the
administrations of Jackson and Cleveland, and yet this was a period of
sustained national growth and growing prosperity.

The difference between these two approaches to the problems of gov-
ernment has been much obscured by recent currents in our legal and
political thinking, but it remains, I think, of fundamental importance.
In Europe, from Plato to Machiavelli, and from Machiavelli to Stalin, the
central problem of political thought has always been: What form of gov-
ernment is suited to the highest form of society? What form will best aid
a great and wise ruler to rule greatly and wisely? This is the approach
which many gifted immigrants to these shores, from Hamilton, with his
ideal of "government by the rich, the well-born, and the able," to Schurz,
with his ideal of "government by civil service," and from Schurz to Frank-
furter, with his gospel of "government by experts," have tried to instill
into our body politic. Foreign observers from Bryce to Shaw and Laski
have with rare unanimity criticized our Constitution as a "conspiracy

THE PHILOSOPHY OF AMERICAN DEMOCRACY

against government," criticized our government as hopelessly inefficient,
and pointed out that it was almost impossible for a great American presi-
dent, governor, or mayor to effectuate great reforms, except through the
intervention of an unusual streak of luck. In recent decades a growing
school of political science, dedicated to the ideal of "good government"
and dominated by Professor John W. Burgess, Professor Ernst Freund,
and other graduates of the University of Berlin, has maintained that only
by conferring increasing powers upon executive or administrative agencies
of government can we hope to eliminate stupidity, corruption, and in-
efficiency from the political scene. Under the influence of these doctrines
American intellectuals have in recent years taken upon themselves what
used to be the exclusive role of reactionary and anti-democratic elements,
namely, the task of disparaging and ridiculing the legislative branch of
government in order to uphold centralization of power and of responsi-
bility in the executive.

There is undoubtedly a large measure of truth in all these criticisms of
our traditional instruments of government, but what all these critics
forget is that Americans (at least those who have not studied at the Uni-
versity of Berlin) have generally been more interested in avoiding the
worst government than in achieving the best and have always been will-
ing to get along with a government of checks and balances, bicameral
legislatures, divided responsibilities, inalienable rights, limited authority,
and red tape, thinking the sacrifice of a possible heavenly rule on earth
more than compensated by the insurance against political tyranny which
these complexities and entanglements afford.

At the point where it becomes necessary to weigh the possibility of good
government against the possibility of evil, an estimate of human nature
becomes a basic determinant in our political judgment. If you think that
elected rulers and their chosen appointees are likely to be good and wise,
you will vote in favor of giving them a larger measure of power, and if
you think that they are likely to be corruptible, you will vote to give
them a lesser measure of that which corrupts. Wisely or foolishly (wisely,
I think), the founders of our nation took a rather pessimistic or cynical
view of the behavior of men in political office. Taking this view they
bent their energies to fashioning instruments of government least likely
to do harm rather than instruments most perfectly adapted to the doing
of good. I think that an objective appraisal of the results compels the
conclusion that their efforts were reasonably successful.

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COLONIALISM

II. THE IDEALISM OF COLONIAL ADMINISTRATORS

The thinking of civilized men on the subject of colonial relations has
long been dominated by the ideal of expert administration of the affairs
of backward peoples. Like most dominant ideas, this thought has about
it an aura of self-evidence, and it is generally assumed that no rational
alternative view of colonial relations is possible. The force of an ideal
like this is found not in the frequency with which it is proclaimed — for
we seldom bother to enunciate that which no one challenges — or even in
the terminology of "protectorate," "encomienda," "trust," and "mandate/'
which are the offspring of this idea, but rather in the fact that the ideal
furnishes the unspoken framework for an extensive universe of discourse.
When men disagree on the merits of a particular colonial relationship
or institution or official, they are likely to appeal to different standards
of administrative competence or to disagree in their appraisal of how
closely a particular administration has approached an agreed standard.
That which all parties commonly assume in this field of inquiry and
controversy, the framework of their agreements and disagreements, is the
value of government by experts. So far as I am aware, all the studies that
have been made by investigators in the field of colonial relations have
been directed to the problem of how a good and wise "mother-country"
(presumably that of the investigator) may wisely and benevolently rule a
dependent people.1

i. Typical are the views expressed in A. H. Snow, The Administration of Depend-
encies (1902): "The general principles upon which the Council should be constituted
are, it would seem, first, that it should always contain persons expert in the general
art of government, persons expert in the science of the administration of dependencies
and persons actually familiar with local circumstances and conditions in the depend-
encies, and second, that it should be so constituted as to be removed as far as possible
from the influence of party politics" (p. 589).

"The only alternative which can justly be applied when popular government is
impossible is, as has been seen, expert government" (p. 595).

". . . . Government of widely extended and scattered lands and populations through
representative institutions is not to be the ultimate substitute for the administration
of dependencies by Imperial States. On the contrary, administration of dependencies
by Imperial States is the final and permanent substitute for representative Govern-
ment, wherever Government must, in the nature of things, extend itself beyond the
limits of lands occupied by a homogeneous population capable of self-govern-
ment

"A State can have no higher ideal than to perform well its obligations as the Im-
perial State of a Federal Empire. To be at once both a Judge and a Ruler is to occupy
the most exalted position conceivable, and, in its possibilities of territorial extent,
the Federal Empire has no limits. The Imperial State in such an Empire may judge

367

THE PHILOSOPHY OF AMERICAN DEMOCRACY

I venture to think that the limitations of this idealistic view in the field
of colonial affairs and intercultural relations generally can be illuminated
somewhat by considering the history of a parallel idea in the field of our
domestic politics. It is no far cry from the doctrine of government by
experts in colonial possessions to the idea of government by experts in
our domestic political affairs. It is scarcely a coincidence, I think, that
the tradition of federalism, of rule by "the rich, the well-born and the
able," was introduced into the politics of our nation by a scion of the
white ruling class of the British West Indies, Alexander Hamilton. It is
hard to see why wealth, race, and ability, if pertinent to the government
of the British West Indies, should not be equally pertinent to the govern-
ment of the United States. At least so Hamilton thought, and if we are
tempted to dismiss his view as a product of class snobbery in its emphasis
upon wealth and ancestry, it is only fair to recognize, as Hamilton did,
that, whether we like it or not, the rich and the well-born are, in our age
as in his, more likely to have adequate education and experience in
affairs of government than those who are neither rich nor well-born.
What Hamilton really stands for, in our political history, then, is expert
government. This puts the opponents of Hamilton in the position of
defending inexpert government. And I think it clear that their defense
of inexpert government, which has become classic in our national political
thought, is as applicable to colonial as to domestic affairs.

The classical opponent of Hamilton's principles, Thomas Jefferson,
summarized his view of government in a message of advice to the Chero-
kee Indians, who were, in 1808, seeking to establish an elective form of
government. "The fool has as great a right to express his opinion by vote
as the wise, because he is equally free and equally master of himself."
Contrast the works of Carl Schurz, who, as secretary of the interior, did
more than any other secretary to destroy Indian self-government and
substitute "government by experts": "The Great Father is a very wise
man. He knows everything. If there is anything wrong with your agent,
he will know it before either you or I know it." 2

Here is the essence of the difference between the Jeffersonian and
Hamiltonian approaches to the problem of government. If government
were chiefly a matter of wisdom, or technique, or efficiency, there would be

and control and equalize between States the most remote possible from each other
and the most diverse possible in their languages, traditions, and interests. Its action,
always intelligent and judicious, and never going beyond the necessity of each case,
is inevitably beneficial and makes for peace and for that better understanding between
men under all circumstances and conditions which is the basis of goodwill" (pp. 602-3),
2. Julia B. McGillycuddy, McGillycuddy, Agent (1941), p. 146.

368

COLONIALISM

no gainsaying the argument that governmental power should be given to
those most capable to exercise it. Once grant that in colonial affairs the
interests of the governed and the governors are identical, and there is
no escape from the conclusion that power should rest in expert hands.
But Jefferson's greatness, and the strength of the government which he
helped to build, lay in the clear recognition that government is not
chiefly a matter of wisdom, technique, or efficiency but is, above all, a
matter of right; that right depends upon human purposes; that human
purposes are basically diverse; and that governmental power inevitably
creates in its holders aspirations that conflict with those of the rest of
society.

These realistic or cynical assumptions can, I think, throw a new light
on some of the old problems of colonial administration.

III. THE REALISTIC APPROACH TO THE PROBLEM OF COLONIALISM

To apply to the problems of colonial affairs, and to intercultural relations
generally, the assumptions made by the authors of the federal Constitu-
tion, we must approach our problem with the assumption that con-
sciously or unconsciously those who rule a "dependent" people will gen-
erally pay more attention to their own interests and advantages than to
those of the people they rule and that they will place a larger estimate on
the value of their contributions to the civilization of their "wards" than
will the "wards" and at the same time will probably place a lesser valua-
tion upon the material and spiritual returns which they receive than
would be put upon these same commodities by the giver. Let us assume
further that those who administer the affairs of people whom they regard
as "inferior" will become enamored of the power they wield (if, indeed,
they were not so enamored when they assumed office and responsibility)
and will be loath to relinquish such power at any time.

1 believe that a good deal of factual evidence could be brought to bear
in support of the accuracy of these assumptions. But, without attempting
to prove this belief, let me offer it as a hypothesis to be tested in terms of
the implications which we can draw from it in the analysis of contempo-
rary colonial problems. These implications, I believe, will have an impor-
tant bearing upon the issues of whether, in any given situation, a colonial
relationship should be established or, having been established, should be
abandoned, as well as upon the further question of how colonial institu-
tions ought to be shaped and administered.

Colonial status is commonly justified today as a temporary institution
designed to give way, in the long run, either to independence or to

369

THE PHILOSOPHY OF AMERICAN DEMOCRACY

assimilation. The only difficulty with this theory is that, as John May-
nard Keynes has observed, in the long run we are all dead. Certainly
the process of terminating a colonial status in an orderly nonviolent man-
ner is one of the most difficult of political operations.

The traditional approach to issues relating to the disestablishment of
colonial status has been that the "expert" in the case, that is, the gov-
erning power, should make such decisions. This position runs into the
difficulty that ruling powers seldom if ever voluntarily abdicate their
power. The argument for the retention of authority will vary, from time
to time, but the conclusion remains the same. The position taken by
the holders of power is most commonly supported by means of four
standard arguments.

1. If a great power is making a financial profit from its administration
of a dependency, this proves that the administration is successful and
should not be disturbed.3 Per contra, if it is suffering a loss, this is the
clearest possible demonstration of the unselfishness of its administration,
of the need for its continuance, and of the distress that would follow
upon its interruption.

2. If a dependent people has made progress, economically or culturally,
under a given form of administration, nothing should be done to interrupt
that progress. Per contra, if progress has not been made, this must be
explained by the fact that the form of administration in effect has not
been continued long enough to achieve its purpose.

3. If within a given area different native groups seriously disagree with
each other, this demonstrates that they are not ripe for self-government,
which could only bring chaos and civil strife. Per contra, if they do not
have serious internal dissensions, they must be either totalitarian at
heart or politically immature and, in either case, cannot be intrusted with
the responsibilities of self-rule.

4. If a native group subsists on a low standard of income, it is plain
that administration by a civilized country is needed to raise the standard
of living. Per contra, if a native group seeks to derive a large income from
its control of peculiar resources or strategic areas, administration by a
civilized country is justified to prevent extortion. (How much financial

3. "The official British colonial report is based upon the tacit assumption that
growing revenues and exports are certain indices of the well-being of colonial society
and of the well-doing of colonial government, complacently ignoring such matters as
standards of living and the crushing out of the right of men to rise to place and
power in their own society. A colonial revolt is put down? — Goodl Now the orderly
processes of government can proceed. In the face of such attitudes only constant
vigilance can guard the independence of the mind and judgment" (Rupert Emerson,
Malaysia [1937], p. 467).

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COLONIALISM

aid would the natives of the Congo need if they received the fair value
of the radium and rubber taken from their land, or the natives of South
Africa, if their title to the Kimberley diamond mines were recognized? 4
And who, to this day, dreams that civilized nations should pay to the
natives of Java or Brazil what rubber is worth to civilized man?)

All the foregoing considerations indicate that no nation can be an
impartial judge of its own administration of colonial affairs. Objective
judgment may possibly be secured from the natives concerned, for, as
Aristotle long ago pointed out, one does not have to be a master of cook-
ing to pass on the merits of a meal. Other alternative sources of objective
judgment are no doubt available. For example, following the precept of
Jesus, those nations that are themselves without colonies might be ex-
pected to render fair judgment on the adequacy of other nations' colonial
arrangements. Or, conceivably, an international agency might be estab-
lished in such a manner as to be capable of rendering impartial judg-
ments on these questions.

Returning to our principle of political realism, we may observe that
not only in determining the existence or abandonment of colonial status
but also in actually carrying out a pledge of freedom, the power of gov-
ernment is a corrupting force.

In the first place, it is clear that any pledge or agreement depends for
its validity upon the continued existence of the parties. To the extent,
however, that any dependency relationship which has been assumed by
agreement tends to destroy the autonomy of one of the contracting parties,
it renders the original pledge or agreement unenforcible and illusory.
This is why so often the treaties and agreements out of which colonial
relationships emerge come eventually to be viewed by later colonial ad-
ministrators as merely anachronistic impediments to efficient administra-
tion, impediments which must be wiped out in the name of progress.5

4. "The Act of Berlin of February 26, 1885, laid down certain useful rules (Articles
XXXIV and XXXV) as to the assumption of a protectorate over territories on the
coast of the African Continent and the conditions of occupation. These rules relate
only to the rights of parties to the Act; they are silent as to the rights of the indigenous
population in the land. It did not condemn the doctrine that such land if not occupied
by a civilized state was res nullius, or prescribe the conditions upon which treaties re-
lating to such land should be recognized. A proposal to that effect by Mr. Kasson,
the representative of the United States, was put forward but rejected" (Sir John Mac-
donnell, "International Law and Subject Races" in G. Spiller, Inter-racial Problems
[1911], pp. 598, 407).

5, "The major objection to the older type of treaty was that it tied the hands of
the central government far too tightly and interposed barriers to its uniform regula-
tion of matters throughout the whole of the Indies which could only be removed

371

THE PHILOSOPHY OF AMERICAN DEMOCRACY

It follows, then, that no agreement between a stronger and a weaker party
can be of any permanent significance unless it guarantees the continued
existence and autonomy of the latter.

Assuming that an obligation looking toward increased self-government
has been assumed, and has not been repudiated, there remains the prob-
lem of how it can be enforced — which history shows to be a problem of
the utmost difficulty. Where, within a framework of colonial administra-
tion, an over-all commitment to local self-government has been made by
the political arm of the governing power, each functional branch of the
colonial service may reasonably be expected forthwith, to the best of its
ability, to obstruct the execution of such a policy. Each service is naturally
likely to take the position: Self-government should be encouraged in
general but not in the particular field of education, health, forestry, min-
ing, agriculture, commerce, industry, banking, or police administration
with which the particular colonial agency, bureau, or office is concerned,
since these are, after all, technical matters requiring long training and
expertise, on which it would be ruinous to introduce incompetent per-
sonnel, native factionalism, tribal politics, etc. Since each technical service
has little to say, ordinarily, about self-government in general but a great
deal to say about the transfer of its own powers, the net effect of this
attitude is to obstruct all attempts by central authority to aid in the
growth of native self-government, no matter how sincerely the latter end
is sought.

From this one may deduce that the carrying-out of a decision to re-
linquish power cannot safely be left to the wielder of such power.

Perhaps the most practical safeguard against the indefinite expansion
of services to a point where the servant becomes the master and self-
government disappears is the establishment of definite time tables for

through a series of cumbrous negotiations with each of the States" (Emerson, op. cit.,
p. 449).

In the United States a similar attitude has appeared from time to time. In 1862
Secretary of the Interior Caleb B. Smith criticized the policy of making treaties with
Indians and advised Congress: "Instead of being treated as independent nations they
should be regarded as wards of the government, entitled to its fostering care and pro-
tection" (Handbook of Federal Indian Law (1941), p. 16). In 1872, arguments concern-
ing national honor were met by the blunt retort of Commissioner of Indian Affairs
Walker: "There is no question of national dignity, be it remembered, involved in
the treatment of savages by a civilized power. With wild men, as with wild beasts, the
question whether in a given situation one shall fight, coax, or run, is a question
merely of what is easiest and safest" (ibid., p. 19). Fortunately, the Congress and the
courts have taken a more responsible view of our treaty obligations, as is attested by
the recovery in the last decade of more than twenty million dollars by Indian tribe*
on account of broken treaties.

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COLONIALISM

the limitation and final relinquishment of supervisory powers. American
experience with Cuba and the Philippines illustrates the possibility of
meaningful agreements the force of which even the most expert adversely
affected administrators have ultimately accepted. The establishment of
such a time table is the first token of good faith in colonial relations, as
the adherence to such a schedule is the surest foundation of continued
mutual trust.6

The special bias of the colonial administrator affects the character of
colonial administration generally, no less than it affects judgments as to
the establishment and discontinuance of colonial relations. Generally
speaking, a colonial administration, whatever else it may do, will tend to
act along lines that promote the aggrandizement of (a) itself and (b) the
government of which it is a part.

The glorification of expert colonial administration by expert colonial
administrators is a natural occupational disease. For one thing, any oc-
cupation inevitably tends to build up a system of values in which it
occupies a role of central importance. This is particularly true of gov-
ernmental occupations and is daily exemplified in the attitudes of judges
toward lawyers and litigants, of military officers toward civilians, and of
governmental administrators or "bureaucrats" toward those who depend
upon their decisions. In all these relationships the public servant tends
to act as a master, treating his employers as inferiors. This attitude is
somewhat checked, on the domestic scene, by the social interdependence
and intermixture of rulers and ruled. Every judge was once a lawyer
and remains a potential litigant, but few experts on native administra-
tion were ever natives subject to expert administration or ever expect
to be. Military officers and civilian "bureaucrats" depend for their emolu-
ments and supplies upon a lay public and its lay representatives. But in
a colonial atmosphere these great solvents of institutionalized snobbery
do not ordinarily operate. Without interdependence and intermixture
there is no natural check upon the tendency inherent in all institutions,
as in all animals, to live and grow by devouring some part of the environ-
ment.

What we call "the drive to amplify jurisdiction" is but a manifesta-
tion of the impulse of every living thing toward self-aggrandizement. It
is not a Machiavellian trait of sophisticated and power-hungry politicians
but a perfectly natural by-product of human effort. Successive officials
may be dominated by the most diverse objectives, selfish and unselfish;
but, while these objectives may cancel out, that which is a common in-

6. See the dialogue between Gandhi and Carlos Romulo, reported in Romulo,
Mother America (1943), pp. 1x6-17.

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

cident to all these objectives creates a pattern of cumulative growth al-
most as irresistible as the growth of coral reef. I think, for example, of
an Indian reservation in Montana where one superintendent, who de-
voted great energies to setting up his charges in the cattle business, was
followed by another who, equally devoted to the well-being of his charges,
insisted on liquidating cattle enterprises and promoting sheep-raising,
while a third superintendent insisted on plowing up the prairie sod in
order to make wheat farmers of his charges. (The fourth was an ardent
cattleman and presumably started a new cycle.) Each of these superintend-
ents, in order to carry out perfectly unselfish objectives, had to insist on
(a) larger appropriations, (b) more extensive credit controls, (c) greater
authority over his staff, and (d) greater power over obstructive or
recalcitrant Indians. These, then, were the jurisdictional constants that
determined the development of the office, while the specific conscious
objectives all canceled each other out.

Where racial or class distinctions are part of the colonial picture, self-
aggrandizement, personal or institutional, is fed by the myths of racial
or class superiority.7 Those who are too wise, too modest, or too timid
to assert boldly their own personal greatness may without censure dilate
upon the greatness of the class or race to which they belong. Where edu-
cational or linguistic distinctions appear, the colonial administrator may
develop a protective contempt for, or ignorance of, the judgments passed

7. "In 1858, after the Indian mutiny and at a time when the Straits Settlements
were still administered as a part of the Indian Empire, Queen Victoria issued the
famous — and habitually ignored — Proclamation in which it was laid down that 'so
far as may be Our subjects of whatever race or creed be freely and impartially admitted
to offices in Our service, the duties of which they may be qualified by their educa-
tion, ability and integrity duly to discharge/ The official and time-honored interpreta-
tion of this Proclamation is to be found in the statement of the conditions for admission
to the Malayan Civil Service: 'Candidates must be natural-born British subjects of
pure European descent on both sides/ the latter phrase having been added after a
misguided Eurasian attempted in 1904 to pass himself off as a natural-born British
subject to the dismay of those in whose hands lay the practical task of overriding
Victoria's liberalism. The British have always taken an exalted view of their trustee-
ship and made amply sure that neither in the Colony nor in the mainland States
should their wards of any race rise to positions in which they might effectively share
in the responsibilities of government.

"In Malaya as elsewhere in the dependent world the denial of political advancement
has regularly been justified by the imperial rulers on the ground of the general back-
wardness, ignorance, and illiteracy of the subject peoples; but such a plea can be
accepted only if the imperial government is in a position to demonstrate that it is
throwing its full energies into the task of education. That this is not the case in
either Malaya or the • Netherlands Indies is too obvious to require any elaborate state-
ment." (Emerson, op. cit., pp. 513, 514, 515, 516).

374

COLONIALISM

on his labors by those in whose service he is supposed to be laboring.
If, by chance, a member of the administrator's own class or race intervenes
to voice a critical judgment or protest on behalf of the native population,
the critic is likely to be denounced or ignored as a "grafter/* "paid
agitator," or "crank" — a "grafter" if he receives a material reward from
the natives, a "paid agitator" if he receives a reward from some other
source, and a "crank" if he receives no material reward at all. The pat-
terns of colonial administration contain many effective devices for re-
ducing the efficacy of such champions of the underdog.8

The cultivation of distinctions between the governing class and the gov-
erned is a widespread element in the mores of colonialism. The marks of
peculiarity which distinguish the self-styled superior race in a native en-
vironment (e.g., formal European attire and avoidance of local food-
stuffs) are likely to be officially cherished as badges of dignity.9 Thus the

8. Cf. Worcester v. Georgia, 6 Pet. 515, for an account of how the state of Georgia
treated missionaries who sought to defend Indian rights. And compare the treatment
meted out to Fra Bartolome* de las Casas, "Defender of the Indians" and bishop
of Chiapas, by the annoyed landowners of his diocese. Before John Collier became
Commissioner of Indian Affairs, he was excluded from Indian reservations, on occasion,
when he attempted to aid in the defense of Indian rights, under the authority of an
old statute (25 U.S.C. 222), since repealed, authorizing the removal from any Indian
reservation of any person whose presence might, in the judgment of the Commissioner
of Indian Affairs, be "detrimental" to "the welfare of the Indians." Of the Nether-
lands East Indies, Rupert Emerson writes: "The Governor-General retains (Article 18)
the exclusive right to prohibit persons regarded as threatening the public peace and
order from remaining in any State or to assign to such persons a definite place of
residence outside the State" (op. cit., p. 453). Of British Malaysia the same writer
declares:

"Dating back for some three-quarters of a century the heart of the Banishment
Ordinance as it now reads in the Straits is contained in the following statement: 'When-
ever it appears to the Governor in Council, after such inquiry as he deems necessary,
that the removal from the Colony of any person, not being a natural-born subject
of His Majesty, is conducive to the public good, the Governor in Council may issue
an order banishing such person from the Colony for such period and generally in
such manner as to the Governor in Council seems expedient.' In the Malay States equally
broad statutes have been adopted, empowering the ruler, when called upon by the
Resident or Adviser, to rid the State of any person whose presence is regarded as
undesirable. Since these provisions are hedged about with virtually no formal safe-
guards and appeals to the courts are ruled out, the sweeping character of the powers
thus conferred is obvious" (ibid., p. 508).

9. The British Colonial officer in Africa who dresses for dinner with himself has
come to symbolize this attitude. Stefansson speaks of Americans in Alaska who boast
that they never eat salmon or reindeer meat, the two staple sources of animal food
in the Territory, and who insist on spending outlandish sums to build log homes in
treeless areas and brick homes in wooded areas, in order to demonstrate that they

375

THE PHILOSOPHY OF AMERICAN DEMOCRACY

cost of living of colonial service employees is often raised to a point where
only the very wealthy or very irresponsible can afford colonial careers,
and the gulf between governed and governors is artificially widened,
while, at the same time and by the same token, the possible economic
and spiritual contributions of the native culture to European civilization
are systematically undervalued. For decades many Europeans in this
country tried with little success and much starvation to maintain Eu-
ropean customs in agriculture as in other aspects of life; prosperity came
to those groups that had enough cultural resilience to accept the Indian
agricultural patterns built around corn, beans, potatoes, tobacco, and
cotton,10

No discussion of the mores of colonial administrators would be com-
plete without reference to the quaint idea of self-government which is so
perennially popular in colonial office circles, the idea, namely, that vest-
ing power in a group of natives selected by the colonial administrator is
equivalent to self-government. This attitude, which, perhaps more than
anything else, made the Cripps mission to India so futile a performance,
is the source of what is called "company unionism" in industrial relations
and "indirect administration" in colonial affairs.11 It is a typical example

have not "gone native." Poor and ignorant natives can hardly be blamed for im-
puting hypocrisy to colonial officials who call themselves "public servants" but live
in masters* rather than servants' quarters.

10. For accounts of the long-continued resistance to such basic contributions of the
American Indian to modern life as tobacco and potatoes, see Arturo Castiglioni, "The
Introduction of Tobacco in Europe," Ciba symposia, 4 (1943), 1436; W. E. Safford,
"The Potato of Romance and Reality," Journal of Heredity f 16, 113, 175, 217, 219-23.

11. "For the imperialist Powers there can be no doubt that indirect rule as it is
practiced in Malaysia brings with it not inconsiderable advantages. In the initial
stages of colonial expansion in which the Dutch still find themselves in some parts of
the outer islands of the Indies, as do the British to a lesser degree in the northern
Malay States, it serves as a cheap and simple means of exerting control over peoples
whose traditional way of life it is not yet possible or necessary to disturb on any large
scale. . . . More generally in the later stages of imperialism it serves as a highly
efficient device for breaking up and segregating potential nationalist movements and
as something of a moral justification for denying the claims to power of the more
advanced elements in the native society. ... Its crudest aspect is no doubt neither
its open brutalities nor its exploitation of peoples — the peoples brought under its
domination have usually not been ignorant of either brutality or exploitation prior to
its coming — but rather that it holds so tenaciously in its own grasp the keys to the
new scientific power over man and nature whose existence it has made manifest to
the peoples it rules and through which it is able to dominate them. Precisely those
native leaders who are most peculiarly its own product and who have reached out for
the keys of its own power it must most ruthlessly suppress as constituting the greatest
menace to its own perpetuation" (Emerson, op. cit., pp. 518, 519).

376

COLONIALISM

of what logicians call the genetic fallacy to suppose that the nature of a
man's political responsibilities is in any way determined by his racial
origins. To a realist it is plain that a white man employed by Zulus and
responsible to Zulus is an instrument of Zulu government, while a dozen
Zulu princes picked by a British official and removable by that official are
instruments of British, not Zulu, sovereignty.

Cynicism, however, must not be one-sided. The diseases of colonialism
are not limited to those who govern. Those who are governed develop
equally stubborn and serious maladies. Chief among these maladies are:
(i) native toadyism, in which the native politician secures crumbs of
power by adopting the usual habits of lickspittles, sycophants, and cour-
tesans; (2) blablaism, in which natives aspiring to posts of leadership
among their people, having no opportunity to demonstrate capacities
for nonvocal behavior, are appraised, selected, and bred solely on the
basis of the noises that come from their mouths; and (3) noiris, in which
the patient, deprived of the opportunity of action, is reduced to a posi-
tion of continuous objection to the course of administration.

A combination of the last two maladies generally producer a situation
in which a depressed group will choose its leadership from those who most
eloquently express the common distrust of the power that governs. To
expect such a leadership to accept with joy promises of self-government, or
of better conditions in the future, is childish. Apparently, however, Sir
Stafford Cripps expected that Indian leaders who had attained their
positions of leadership by warning their people not to trust the British,
these warnings having been frequently substantiated by the course of
events, could turn around to their followers and say, "The promises
which the British now make are to be believed." In all probability the only
rational approach to this type of situation is the immediate transfer of
new realms of responsibility to native control. Such a solution not only
does away with the need for trust in promises but also inevitably modifies
the character of the native leadership by instilling the habits, tests, and
responsibilities of actual administration and thus replacing leaders-in-
discourse with leaders-in-action.

Our realism, finally, if it is to result in a balanced judgment, must ex-
tend to the alternatives to colonialism. Do the "Banana Republics" of
Central America present a fitting ideal towards which peoples now held
in colonial subjection are to aspire? Why is it that forces of reaction in
domestic politics (Edmund Burke and W. R. Hearst, to take two notable
examples) often throw their support to independence movements of sub-
ject peoples? The answer to both questions is to be found, I think, in a
recognition of the fact that economic imperialism is not necessarily de-

377

THE PHILOSOPHY OF AMERICAN DEMOCRACY

pendent upon, and is sometimes even hindered by, political imperialism.
Where such hindrances arise it will be to the interest of the economic
imperialists to eliminate the political phase of colonialism.

The bargaining between representatives of an advanced commercial
economy, on the one hand, and aborigines, on the other, is generally
marked by extreme differences in (a) technology, (b) understanding of
costs and values, (c) power to enforce promises, (d) attitudes toward senti-
mental or intangible values, and (e) control over, and concern for, the
future. By reason of these differences enterprising representatives of the
more advanced economy can generally manage, in time, to secure most
of the property of the aborigines in exchange for a very modest return,
unless forcibly restrained from doing so.

The inequality of the bargaining process may be accentuated by the use
of liquor, physical coercion, the bribing of native rulers, the financing of
palace revolutions, or more subtle forms of interference in local politics;
but even without these aids the inequality of bargaining power that is
based upon a wide disparity in technology leads inevitably to exploita-
tion unless such bargaining is subjected to effective restraints. Four sources
of such restraint may exist: (a) a regime of free competition, in which
competitive bids raise the price of native property or native labor to
world commerical levels; (b) restraints upon unequal bargaining ex-
ercised by the native group,12 (c) restraints upon unequal bargaining
exercised by the political authorities of the alien group; and (d) controls
of an international character. Where free competition and international
authority do not exist and the leadership of the native group is unable or
unwilling to restrict trade between natives and foreigners, the only
restraint that the trading company need fear is that which may emanate
from its own sovereign. In this situation, if its own sovereign is actually
disposed to impose such limitations, a conflict is likely to arise between
the trading companies and their own governments, the former seeking
to avoid the limitations which the latter seek to impose.

The history of European settlement in the New World is a history of
four centuries of such conflict. Always there were Europeans seeking the
gold, furs, and lands of the Indian either through a one-sided trade in
which the Indian received ' 'firewater," firearms, or baubles for that which

12. Consider, e.g., the law of the Cherokees which made negotiation by any private
citizen of the Cherokee Nation for the sale of land to the United States a capital
offense. This ordinance, adopted on December 2, 1842, appears as the first section of
the Cherokee Criminal Code in the compilations of 1867, 1875, 1881, and 1892. The
development of the boycott in Ireland, India, and China has introduced a nonpolitical
form of native control that is destined to play a large role in the colonial problems
of the future.

378

COLONIALISM

he conveyed, or through the simpler methods of brigandage. This side of
the story of the conquest of America is well known. What is not so well
known is the persistent effort of government to lay restraints upon such
individual enterprise. From the issuance of the Papal Bull of 1537, which
forbade the holding and selling of Indians as slaves, and the Laws of the
Indies, which forbade private transactions in Indian land, down to the
latest regulations of the United States government, prohibiting the sale
of Indian lands to non-Indians and requiring leases of Indian minerals
to be made only on competitive terms, a chief source of protection for
the native against white exploitation has been the political arm of the
white man's society.13 And from the days when Fra Bartolom£ de las
Casas was run out of his diocese by the exploiters to whom he brought the
royal and papal guaranties of Indian rights, through the days when land-
grabbers of Georgia and the Georgia courts, with the approval of a
frontier president, defied the Supreme Court of the United States and
insisted on imprisoning those who tried to enforce federal laws for the
protection of the Indians, and on down to the present, when western
miners, stockmen, and land-grabbers make regular efforts, in the name
of Indian freedom to abolish all federal laws and agencies that protect
Indian property, the struggle has raged between private exploiters of the
Indian and government agencies.

One may say that the desire of government throughout this struggle
was to make the exploitation of the Indian a government monopoly,
and there would be much truth in that analysis. But the fact remains that
the attitude of governments has been generally dominated by considera-
tions of long-range expediency, if not of justice, rather than simply by
the considerations of immediate profit that most appealed to private
exploiters.14 Thus the federal government recognized at an early date that
a dispossessed Indian offered a threat to the lives of innocent men and

13. See F. S. Cohen, "Indian Rights and the Federal Courts," Minnesota Law Re-
view, 24 (1940), 145; "The Spanish Origin of Indian Rights in the Law of the United
States" [above, p. 230]; McNutt, Bartholomew de Las Casas (1909), pp. 235; ff.

14. "In point of fact, imperialism as soon as it has undertaken flie actual govern-
ment of backward peoples has had to assume something of a duality of functions.
The role of a colonial government, as Adam Smith pointed out oversharply in the
Wealth of Nations, is even in some respects antithetical to that of a colonial company
of the order of the East India Companies. If the latter is in principle motivated solely
by the drive for the largest and quickest profits, the former must to some degree foster
the growth of more permanent wealth in the dependent area if only that it may levy
the taxes which are its life-blood. . . . The most that can normally be expected of
a colonial government within the framework of imperialism and in its direct relations
with home capitalist interests is that it compel the latter in their own interest to
accept the ultimate advantage of long-run over short-run profits; whence can be derived
virtually the entire range of imperialist humamtarianism" (Emerson, op. cit., p. 468).

379

THE PHILOSOPHY OF AMERICAN DEMOCRACY

women and that defenses against such threats imposed considerable
burdens upon the public treasury.15 Thus a matter of no special concern
to the commercial trader was of serious concern to the government. Al-
though changed conditions within the last five decades have eliminated
the fear of Indian warfare, the dispossessed Indian continued to be a
hazard or burden to the community, and thus the basic incentive for
governmental protection of Indian property has continued, despite the
strenuous efforts of private commercial interests to destroy that protec-
tion and despite the aid given that campaign by those who think gov-
ernment protection degrading.16

Against this background of historical experience it would certainly be
foolish to overlook the positive protection that political government may
offer against the ravages of raw economic exploitation. It is highly im-
probable that United States rubber interests would be allowed to exploit
the Liberians in the way they now do if Liberia were a colony of the
United States; the fact that for other reasons neither Liberia nor the
United States would want to establish any such political relationship does
not detract from the evils of the present American corporate control over
the Liberian economy; rather it contributes to those evils by giving Ameri-
can rubber interests the argument that any attempt by the United States
to control their exploitation of Liberians would be an infringement of
Liberian sovereignty and would further the exploitation of Liberian
resources by non-American powers.

Political independence, then, is not an adequate answer to all colonial
problems. Recognizing the distinction between economic and political
dominance, we can formulate our basic problem in this way: How can
we minimize the evils of political overlordship without increasing the
evils of private economic exploitation?

In approaching the problem of colonial administration from the cyni-
cal or realistic standpoint which the foregoing remarks portray, no
single formula can be mechanically applied to all situations to produce

15. During the nineteenth century it was estimated that it cost the War Depart-
ment $4,000,000 to kill an Indian.

16. That "special aid and consideration" in our government's relations with Indian
tribes lead to "loss of self-respect and self-dependency" and should be promptly ter-
minated is a thesis which Oswald Garrison Villard advances with considerable moral
fervor in an article, "Wardship and the Indian," Christian Century, 41 (1944), 397.
Mr. Villard's expressions of pious horror at the "Hitleresque consciencelessness" with
which we have disregarded Indian treaties and agreements in the past indicate that
he has no conception at all that these treaties and agreements all promise "special
aid and consideration" and that the violations he deplores have always been defended
by Villards who think such special aid and consideration degrading.

380

COLONIALISM

an adequate social solution. But certain limiting assumptions may serve
to exclude some pretended solutions of colonial problems and thus to
narrow the field to be explored in facing any given situation. These limit-
ing assumptions, or guiding principles, may perhaps be put concisely in
something like the following terms.

Proposed Planks for a Peoples' Charter

1. A weaker people 17 thrown into contact with a stronger may expect
exploitation 18 but will seek to minimize its duration and extent.

2. Exploitation may take either political or economic forms; main-
tenance of the forms of independence by a weaker power is no guaranty
against economic exploitation. (Witness the "Banana Republics" of Cen-
tral America.)

3. Commercial exploitation is generally more degrading than political
exploitation, for an imperial state is normally responsible to the public
opinion of its own citizens, while an imperial corporation is responsible
only to the profit motive. (Cf. e.g., the Virgin Islands, a political de-
pendency, and Liberia, an economic dependency.)

4. A weaker people can escape from exploitation only by acquiring
added strength, i.e., a greater measure of control over the environment.

5. A people requiring services of civilization 19 will seek to obtain such
services at the lowest cost.

6. No state will offer or accept such services unless it expects to profit
therefrom.

7. No power is morally obliged to govern the affairs of an alien people;
no people is morally obliged to submit to the rule of an alien nation.

8. No native people lacks the capacity to do that for itself without
which it could not have survived as a people.

9. No people is so deficient in human capacity as to be devoid of the
means of self-government; the choice of alien government can be justified
only when an alien government is willing and able to render services of
civilization unobtainable at lesser cost.

10. Any native people that requires technical instruction, access to
capital, protection, or other forms of assistance in the development of its

17. By "a weaker people" I mean a people with less control over its environment.

1 8. By "exploitation" I mean the inequality of intercourse between the strong and
the weak.

19. By "services of civilization" I mean those services (e.g., health, education, tech-
nical education, access to capital goods, and protection against military aggression)
by which the strength of a people is increased.

381

THE PHILOSOPHY OF AMERICAN DEMOCRACY

resources and in the mastery of modern technology, should be free with-
out surrendering its autonomy to secure such assistance from other na-
tions and agencies upon mutually agreeable terms.

11. There is no such thing as general superiority among cultures. A
mandate for sanitation is not a mandate for language change.

12. Reciprocal benefit cannot exist in a colonial relationship except be-
tween a people desirous of receiving governmental services of a type it
cannot provide for itself and a people capable of supplying such services
for a reasonable consideration.

13. No government may properly do for a dependent native group that
which the native group can do for itself.

14. The best human test of reciprocal benefit is mutual agreement.

15. The best judge of the value of governmental service is the con-
sumer thereof.

16. No government is wise enough or good enough to be an impartial
judge of the value of its own colonial administration.

17. Self-government being itself the highest political good of civiliza-
tion, a sacrifice of powers of self-government 20 can be justified only as
a temporary measure.

18. The value of a colonial relationship depends primarily upon the
rate at which it works its own destruction.

19. No colonial relationship is ever terminated except upon the initia-
tive of the dependent group.

20. There can be no guaranty that a colonial relationship will be
temporary without the continued existence of the dependent group as a
political entity capable of acting on its own initiative.

21. Political existence depends upon political functioning in the satis-
faction of human needs.

22. Every native group possesses traditional means of maintaining
order, controlling domestic relations, regulating the use and disposition of
property, assessing contributions of goods or services from the individual
to the community, and bringing the opinion of the group to focus on
vital problems; none of these functions can legitimately be suppressed or
restricted by another power.

23. Acceptance of colonial status cannot be justified unless a measure of
political autonomy is retained.

20. By "sacrifice of powers of self-government" I do not mean to include the volun-
tary acceptance of limitations on sovereignty which must inevitably accompany every
broadening of the realm of government. Neither the members of a gipsy band nor
the citizens of a great power lose political power by shifting their political allegiance,
wholly or partially, to a larger political unit.

382

COLONIALISM

24. There can be no political autonomy unless a group is represented
by agents of its own choosing.

25. Any agreement establishing a colonial relationship is illusory unless
the weaker party maintains the capacity to insist upon the enforcement
of the terms of its bargain.

26. Since no colonial relationship can be legitimately viewed as per-
manent, and since every majority begins as a minority, respect for de-
mocracy requires tolerance of the right of expression of all native minori-
ties, including those that seek to terminate colonial status.

27. Since the disestablishing of an established colonial relation in-
evitably requires agitation and agitators, the good faith of a colonial
power is to be measured by the freedom which it allows to agitators for
independence.

28. Among agencies capable of rendering technical services of civiliza-
tion, a weaker people may most safely employ those incapable of using
force (e.g., International Red Cross, International Labour Office, Univer-
sal Postal Union, international religious bodies, and private health re-
search agencies).

29. Among nations equally equipped to render needed services of civi-
lization to a native group, the native group can most safely turn to that
power which, by reason of military weakness or otherwise, is least capable
of turning its authority to oppressive ends.

30. Where services of civilization are sought from powerful nations,
incentives to national aggrandizement can be minimized if such services
are administered on an international basis.

31. No government which is in default in meeting existing obligations
toward a dependent people can be properly intrusted with new obliga-
tions.

32. The ultimate human court of appeal in colonial affairs is the forum
of enlightened and disinterested public opinion.

383

Mythology of Immigration

"WHEN THE country was new it might have been good policy to admit all.
But it is so no longer."

This solemn warning, delivered by Representative Harrison G. Otis of
Massachusetts, on June 26, 1797, has been repeated with monotonous
regularity ever since. In every decade writers and orators have predicted
that a continuation of immigration would be disastrous, though they
generally concede that immigrants of earlier decades have contributed
to our national strength and prosperity.

If all the prophets who praised the immigration of earlier years and
warned against the disastrous consequences of continued immigration
have proved to be wrong in the past, perhaps those who repeat the dis-
tinction today are likewise mistaken.

It may even turn out that those who promised in 1921 that a radical
curtailment of immigration would prevent unemployment were mis-
taken. At least it is timely to consider what effects our past and present
immigration policies have had upon our economic life.

According to prevailing popular theory immigration increases un-
employment, reduces wage levels, and menaces our way of life.

Popular theory regards every immigrant as a competitor to native-
born job seekers. Does it not then follow that he adds to the roll of the
unemployed? The answer is: It does not follow. It is true that immigra-
tion adds to the supply of labor, just as human birth or insulin does, but
just as surely it adds to the demand for labor. Whether it adds more on
one side of the ledger than on the other is not a question that can be
answered by armchair argument. Reference to objective facts and statistics
indicates that immigrants have done more than their share of job-creating
in the United States.

Published in This Month, 1946, under the title "The Myth of the Immigration
Scare." Appeared under the title above in Freeland, 1946. For a fuller treatment by
Felix Cohen of exclusionary immigration laws, see "The Social and Economic Conse-
quences of Exclusionary Immigration Laws" in National Lawyers Guild Quarterly f
1939; "Exclusionary Immigration Laws" in Contemporary Jewish Record, 1940; and
Americanizing our Immigration Laws, (American Jewish Committee), 1949.

384

MYTHOLOGY OF IMMIGRATION

As against the myth that immigrants take away jobs, the fact is that
many of our industries have been largely built up by immigrant in-
ventors, enterprisers, and laborers. How many jobs do we owe to such
immigrants as Samuel Slater, who introduced cotton manufacture into
New England; Aaron Lopez, who founded the great whaling industry
of New England; John Ericsson, who invented the ironclad steamship
and the screw propeller; David Thomas, the "Father of the American
Iron Business"; the four electrical wizards of America, Steinmetz, Pupin,
Tesla, and Faccieli, and the three great immigrant aircraft designers,
Fokker, Sikorsky and De Seversky?

Immigrants from Germany, Russia, and Ireland have designed many
of our greatest dams and bridges. French immigrants in the early days
of the Republic developed the munitions industry; Germans and Swiss
developed pottery, leather industries and cheese manufacturing; immi-
grants from Eastern Europe built up our ready-made clothing industry;
Irish and Italian immigrants built our roads and railways; Welshmen and
Slavs developed our metal and mining resources. Immigrants from all na-
tions have explored the resources of our continent, ever since a German
mapmaker working in a French college named the continent in honor of
a great Italian explorer who sailed under the flag of Portugal.

The fact of the matter is that every wave of immigration in our na-
tional history has served to create new jobs, new forms of agricultural
or industrial production, new bases of domestic and international trade.
These effects have been intensified in the case of refugee immigration
because refugees are the survivors of a bitter struggle for existence. Their
capital consists of immaterial things — the skills and the knowledge that
cannot be stripped from a man when he is robbed of his material posses-
sions. We have profited as a nation from the fact that so large a propor-
tion of the later immigration to these shores has consisted of men and
women bringing special gifts in the way of skill and knowledge, the in-
tangible goods of which mankind has a perpetual undersupply.

The American scene today offers plenty of evidence of the way in which
immigration contributes to our industrial development.

A 25O-year-old firm was recently moved from Prague to New York. It
manufactures glass products which formerly had to be imported. A
knitting mill established in Lawrence, Mass., has introduced new methods
and machines originally used in England only.

A few years ago a German immigrant took over an abandoned sugar
mill in Waverly, Iowa, and converted it into a plant for corn products,
employing 100 of the 3,000 inhabitants of that town and creating a new
market for farmers of the region.

385

THE PHILOSOPHY OF AMERICAN DEMOCRACY

Just before the war a Polish scientist escaped from Europe and brought
to this continent a secret process for producing crystal clear dextrose
syrup from the starch found in potatoes or wheat. At the rate of 60,000
Ibs. a day, this product is now flowing from the only plant of its kind
in this hemisphere, a cooperatively owned factory in Wenatchee, Wash-
ington. Valued at $250,000, it is owned by 700 enterprising farmers,
mostly wheat ranchers.

Hundreds of lesser known newcomers have brought with them an
enrichment of our national economy. In large part, their enterprises are
noncompetitive, utilizing special skills and processes new in the United
States, manufacturing articles which had previously been imported.

The fact is that outside of the temporary prosperity of our war years,
our national employment rolls have risen most rapidly in periods of
high immigration and have declined only in periods when immigration
was interrupted or curtailed. Immigration, bringing new domestic mar-
kets and new industries, stimulating home-building and construction,
developing new lands and resources, broke every depression down to
1921. Since then we have tried desperately to find substitute stimuli for
our industrial development. The stimulus of the igso's, large scale for-
eign loans, proved a delusion and the stimulus of deficit spending and
war production during the past decade offers little hope for future years.

It is not at all clear that the "free enterprise system," which worked so
well during a century when we expanded our markets by admitting 40,-
000,000 immigrants, can survive the radical curtailment of that source of
growth.

But is it not true that immigrants undermine American wage standards?
Certainly it is on the basis of this idea that labor leaders like Samuel
Gompers and Matthew Woll (themselves immigrants) have led the fight
to close the gates to later immigrants.

But again, the facts do not bear out the theory. In industry after in-
dustry, it is the immigrants who have organized in unions and won de-
cent wage standards when regions without immigrants were most back-
ward in unionization and stood lowest on the list of wage scales. Immi-
grant statesmen like Senator Wagner and Senator Murray have led the
fight for better labor legislation, for public housing and for social security.
Immigrant farmers have revolutionized farm income figures in the states
where they have been welcomed.

The American living standard, the highest living standard in the world,
exists only in the high-immigration states. The latest pre-war income figures
(1940), as reported by the Census Bureau, show that in the ten states that
are most nearly free of immigrants the average annual income per family

386

MYTHOLOGY OF IMMIGRATION

of five is $1,535, while in the ten states that have the highest proportion
of immigrants the average annual income per family of five is $3,666.

The impact of immigration on farm production is even more striking.
Farms in the ten low-immigration states are worth $30 per acre; farms in
the ten high-immigration states are worth $81.70 per acre.

These differences cannot be attributed to differences in soil fertility or
natural resources. The fact is that the permanent natural resources of
the low-immigration states are, per capita, twice as great as those of the
high-immigration states. The states which are at the bottom of all lists of
per capita income and farm acreage values, are the practically immigrant-
free states of Mississippi and Arkansas. Yet these states are gifted with
great natural resources of soil, water power, timber, and minerals that
have scarcely been tapped.

The farm land of Mississippi, worth $24.80 per acre, and Arkansas,
worth $25.32, is certainly not less fertile than the farm land of Mas-
sachusetts, which is worth $109.40 per acre, or Connecticut, worth $135.41.

Can anyone doubt that the presence of immigrant-built industrial
markets and agricultural skills gathered from all the world have more
to do with these differences in the values of agricultural production than
any differences of soil or climate? What would the agriculture of Califor-
nia amount to if we had enacted our restrictive immigration laws in
time to exclude the Italian, Oriental, and Armenian farmers who have
made its deserts blossom with immigrant fruit and vegetables?

As true today as when they were first spoken are the words of the
great economic realist of the Constitutional Convention, James Madison:
"That part of America which has encouraged them (the foreigners) most
has advanced most rapidly in population, agriculture, and the arts."

Deprived of the usual economic arguments, the immigration restric-
tionists can always fall back on the argument that aliens menace the
American way of life. Like most appeals to emotions of fear and hatred,
the argument seems unanswerable. But if we try to define what we really
mean by the American way of life we find that whatever is distinctive
about American civilization has depended upon the impact of immigra-
tion.

Nothing is more American than the two-party system. That system
flourishes in all the high-immigration states. The one-party states of the
South, where men vote as their grandfathers voted, are the states that
are practically free of immigrants. And even in New England the states
with fewest immigrants, Maine arid Vermont, are practically one-party
states.

Since the Dutch city of New Amsterdam (where eighteen languages

387

THE PHILOSOPHY OF AMERICAN DEMOCRACY

were spoken in 1640) introduced non-sectarian public education in this
country, Americanism has meant, above all else, educational oppor-
tunity. Today the ten high-immigration states spend more than twice as
much per capita for education as do the ten most purely native states.

Since the days of Franklin, and even more since the days of Edison,
America, to the practical minded, has meant electricity. The high-
immigration states use 60 per cent more electricity per capita than the
low-immigration states.

What could be more American than the slogan, "Live and let live."
The homicide rate in the ten low-immigration states is six times as high
as that in the ten high-immigration states.

Care of the young is certainly one of the proudest achievements of
American civilization. And despite the evils of slum conditions in our
large cities, the fact remains that the infant mortality rate in the low-
immigration states is more than 50 per cent higher than that of the high-
immigration states.

Whether we look to radio ownership, literacy, newspaper circulation,
Army intelligence tests, or any other measurable index of the American
way of life, we shall find the same result: whatever is distinctive and
precious about the American way of life is linked with immigration and
with the spirit of tolerance which is the condition and the product of
immigration.

True, the immigrants themselves have not always reaped the full re-
ward of their labors. But even when they filled the hardest and lowest-
paid jobs and "displaced upwards" workers of older American strains,
they were contributing to a national prosperity of which their children
would taste the fruits. And not only their own children did they serve,
but no less the talented children of immigrant-free states, who have for
generations sought in our immigrant-built cities the opportunities they
could not find at home.

Immigration has always been a part of the fluidity and opportunity of
American life. Without continued immigration there are no frontiers
to settle.

If, as some of our economic theorists tell us, the frontier has gone, it
is not because the wilderness has been settled. In Alaska alone more than
500,000 square miles of wilderness, an area as large as all Scandinavia,
with similar climate but richer in agricultural and natural resources,
beckons in vain. In the states of the Union there are still more than
250,000 miles of open public domain, an area larger than Germany,
available for homesteading. The wilderness has not vanished from Amer-
ica, as any watcher-out-of-the-train-windows knows. If anything has van-

388

MYTHOLOGY OF IMMIGRATION

ished it is the uprooted seeker of a new homeland, accustomed to hard-
ship and willing to face the wilderness and tame it.

The Frontiersman of our national epic was not only Daniel Boone,
the hunter, who felt crowded out when he had neighbors twenty miles
away frightening the game. The Frontiersman was no less the German-
Jewish pedlar whose pack of needles and pins and kitchenware made
life livable at the outer reaches of civilization. He was the Italian road
builder, the Irish canal digger, the Chinese laundryman in California,
who later drove spikes for the transcontinental railroads. Idaho was set-
tled, in large part, by Basque sheep herders, Nevada by immigrant Italian
farmers, Washington by Scandinavian fisher folk and lumbermen.

The frontier never did "pass," despite all the learned tomes attributing
our economic ills to its passing. We just put a fence around it at the end
of the first World War and declared that it could not be settled except
by men and women who, being already comfortably settled within reach
of roads, schools and movies, had no desire to subject their families to
the hardships of wilderness life.

We have merely fenced out the hardy, broken-rooted, freedom-loving,
home-seeking men and women of other lands who have always been an
essential part of our wilderness-taming and who would now, if we opened
the way, bring back our lost frontier and the stimulus that the frontier
once gave to our industry and to our democracy.

389

The Role of Science in Government

IN SCIENCE no less than in government, I think, it is a part of wisdom to
recognize that not every sentence followed by a question mark asks a
question.1 The text for discussion, "How far can scientific method deter-
mine the ends for which scientific discoveries are made?" ends with a
question mark. But in order for this to pose a significant question two
preconditions would have to be met: first, it must be possible for a
method to determine an end, and second, this process of determination
must be measurable, so that some constant can be substituted for the
variable "how far." For my part I cannot, for the life of me, understand
how any method can ever determine an end. And I therefore see no point
in trying to decide whether such a process of determination, if it existed,
could be measured. I shall, therefore, not attempt to give an answer to
what I think is not a question. Let me instead beg your tolerance if I
treat our text not as a question to be answered, but as a symbolic indica-
tion of interest, and perhaps of confusion, that deserves to be explored.

What we are interested in, I suppose, is the question of whether and
how human beings can be scientific in marking out social goals, stand-
ards, and controls to govern scientific research and technology. The
process of influencing, criticizing, and controlling scientific activity is
carried on by college trustees, corporate boards of directors, governments,
and many other agencies. Because my own knowledge of the mores of
college trustees and corporate directors is rather limited, and with no
intention at all of minimizing their importance, I propose to restrict
my comments to the problem of governmental or political influence or
control over the activities that comprise science. Specifically, I propose

i. I have attempted elsewhere to analyze the conditions of interrogatory significance.
See "What is a Question?" [above, p. 3],

This paper was read at a symposium at the annual meeting of the American As-
sociation for the Advancement of Science in Boston, December, 1946, in a joint session
of Sections K. and L, and the American Philosophical Society. It was published in
Social Science f 1946. A second paper, "Scientists and Social Responsibility," was read
by Ralph W. Bridgman. By mutual consent of all concerned, both articles were pub-
lished, in slightly revised form, in Scientific Monthly, 1947.

390

SCIENCE IN GOVERNMENT

to address myself to the problem of whether we can be scientific in the
political control of scientific activities.

Let me at the outset try to dispose of a common language block to
clear thinking on this problem. It is frequently said, and even more
frequently assumed, that political control of science or technology is
either impossible or wholly calamitous. "Political medicine" is the bad
name that some physicians like to give to programs of Government-
subsidized medical service, to save the trouble of arguing the merits or
demerits of such programs. Such are the dyslogistic overtones of the ad-
jective "political" that further argument appears superfluous. And per-
haps the word "control" has similar overtones. Let us, however, follow-
ing the advice of Justice Holmes, wash our words in cynical acid and
recognize that political factors, in the sense of factors of policy or gov-
ernment, are inevitably involved in the control of technology, and that
control is positive as well as negative, including assistance as well as
restriction. Let us, in the same spirit of operational realism, which Pro-
fessor Bridgman has so ably advocated in the physical realm, recognize
that "disciplining" scientists may be only a dyslogistic way of referring
to the award of Nobel prizes, and that the "right of the stupid to exploit
the bright" may mean no more than the duty which a great physicist is
under to expound his ideas to fellow-mortals of lesser intellect.

At any rate the problems remain when emotion evaporates. Research
facilities may be taxed or untaxed, publicly subsidized or not, permitted
to accept private donations and bequests or not. Free public education
may stop at the high school level or run through college or post-graduate
courses. Government agencies may restrict or expand their present re-
search activities in the natural or the social sciences or in both. Which of
these possible courses should be followed? And how should the products
of government research be distributed to the public? Should inventions
that result from government research belong to the public or to the in-
dividual government employee who completes the invention? How far
should the government go into the atomic energy business, or into the
power business generally? How much freedom should public servants
enjoy in publicizing their findings and theories, and who should fix and
judge the limits of such freedom? These questions, which seriously affect
the future of science in this country, are inevitably political, and we do
not guarantee the correctness of our answers by refusing to face these
questions openly or by failing to appreciate the conflicting considerations
that may lead reasonable people to entertain divergent views in answer-
ing these questions.

To say that it is possible, and even desirable, to weigh such political

S91

THE PHILOSOPHY OF AMERICAN DEMOCRACY

alternatives and questions as these is only to touch the edge of the prob-
lem before us. What is more important to recognize perhaps, is that
social control or direction of technology is not only one among many
functions of political organization, but, over the span of recorded history,
probably the most important single function of political organization.

If we look, for instance, to the Stone Age culture of our own Plains
Indian society, where the buffalo hunt was the principal source of food,
clothing, and shelter, we find that the social control of buffalo hunting
was the major axis of political development. The buffalo police came into
being in the buffalo hunting season, when whole tribes and nations
united, in order to make certain that no unsocial or unskillful individual
hunted in such a way as to frighten away the herds. At other times of
the year Plains society was highly individualistic, and single families,
bands or individuals, might hunt deer or bear as they pleased, without
police supervision. But when the existence of a whole people was at
stake and depended upon a minutely elaborated technology for suste-
nance and survival, a police force was called into being.

So, too, if we look at the more developed irrigation-farming society of
the Pueblo Indians, we find a society dependent upon a carefully de-
veloped technique of irrigation; control of the irrigation ditches, and the
use of irrigation water are to this day the focus of Pueblo government and
the ultimate sanction of communal discipline. If we look at the old
southern plantation economy, we find techniques of operation and man-
agement which are reflected and supported in the government machinery
of the plantation states. In a society of traders or raiders, government
focuses on the canons and techniques of trading or raiding.

At every level of civilization, we find that acts which disturb or seem
to threaten the accepted way of making a living are the most serious of
crimes. On our old western frontier men might forgive many departures
from the moral codes of the East, but there was no argument about horse-
stealing, which cut the thread on which travel, communication, and liveli-
hood hung in the technology of the frontier.

The precarious dependence of all human living and civilization upon
the maintenance of man's technological control over nature is present
before our eyes today. Though the threat of starvation which has haunted
mankind for a million years and still haunts most of the world no longer
looms before our eyes in this blessed land, the atomic bomb has made us
all realize that our lives and our children's hang in the balance while we
seek to fashion effective controls for our technology.

Today we are beginning to realize the inadequacy of the old-fashioned
materialism that viewed human development as a product of geography

39*

SCIENCE IN GOVERNMENT

and natural resources, with technology appearing as a by-product of
resources. Today we are beginning to appreciate that what is a natural
resource is itself a function of our technology or resourcefulness.2 Human
intelligence can make airplane wings out of sea water, fertilizers out of
air, little atoms out of big atoms. Set a scientist down in a desert or a
wilderness and he will begin to discover resources, wealth, opportunities.
Take science from a prospering land and it will relapse into desert or
wilderness. If, as a distinguished economist has well said, the fundamental
category of economic activity is power,3 then, as surely as knowledge is
power, knowledge is the basis of every economy.

Today a modern scientist may paraphrase Archimedes to say: "Give
me control over a nation's scientific development, and a long enough
span of years, and I will raise or lower its level of income or power to
any assigned point." Compare the strength and the standard of living of
a country like Switzerland, incomparably poor in natural resources but
rich in vision and skill, with that of Romania, abounding in natural re-
sources but lacking in science,4 and you will find a key to many traditional
mysteries of international intercourse and of our own national and ter-
ritorial development.

If, then, the control or direction of technology is inevitably a political
question, and perhaps, as I think, the most central and most important
of all political questions, the question that faces us is: "What light can
science throw on the proper direction of such control?"

Perhaps the most persuasive answer to a question of this sort is one
given by historic fact. The scientists of this country have undertaken
within the past two years to help direct the course of atomic energy de-
velopment in this country by cooperating with politicians or, if you
prefer, statesmen — if it is ever permissible to apply the term to politicians
who are not yet dead. Our physicists and other scientists lectured for
some months to a senatorial seminar arranged by Senator McMahon,
and found a willing audience. As one who played a very minor role in

2. "Things are not resources in themselves; they become resources as men grow
more resourceful. The economic order is itself an order of human wants and sacrifice,
satisfactions and acts of will. Technology is a form of knowledge." F. S. Cohen, "The
Relativity of Philosophical Systems and the Method of Systematic Relativism" [above,
p. 95]. The most incisive analysis of this issue that I know is to be found in chapter 5
("The Geographic Factor in History") of Morris R. Cohen's Meaning of Human
History (1947).

3. Frank Knight, "Social Science," Ethics, 51, 127, 139; and cf. M. R. Cohen, "Prop-
erty and Sovereignty" in Law and the Social Order (1933), p. 41.

4. See H. F. Clark, Education Steps Up Living Standards (U,S, Chamber of Coro,-
merce, 1945), pp. 12-13.

593

THE PHILOSOPHY OF AMERICAN DEMOCRACY

the preparation of testimony and the drafting of legislation in this field,
I should like to pay my tribute to the public service rendered by our
atomic scientists, in awakening and informing public opinion. It was the
scientists, speaking with the authority that a preface of thunderclaps as-
sures, who called attention to the dangers inherent in certain legislative
proposals in the field of atomic energy. Those proposals might now be
law but for objections that scientists then voiced. Those proposals, we
soon realized, threatened the basic principle of our American democracy,
the thing that distinguishes us from so many sister republics of this
hemisphere, civilian supremacy in government. I think we have taken
the first brave steps towards making atomic energy a source of peace and
plenty rather than an endless catastrophe. I think we have achieved a
reasonable compromise between the need for freedom of research, which
is an essential part of free thought, and the need for public control of
its military and economic applications.5 If we have achieved this result,
it is because our scientists and our politicians were able to realize that
they live in One World. If we have not completely attained the Platonic
ideal that will come into being when kings become philosophers or
philosophers become kings, we have, I think, made a modest stride in
that direction in dealing with atomic energy.

Such a result was possible in the field of national legislation, for one
thing, because our Congress, not being limited, as many state legislatures
are limited, to meeting for a few weeks every other year, is able to give
patient attention to scientific evidence on important political issues,
whenever they arise, and to act in the light of the evidence. How Congress
has been able to survive the popular Calvinistic theory of the depravity
of government, which has led to the extraordinary restrictions fastened
upon the meetings and activities of nearly all our state legislatures, I
don't know. But I think it fortunate for the country that we do have
a national legislature that is ready, able, and willing to have the light
of science thrown on current problems at any time. Members of Congress
are not always scholars, but I see no reason why American scientists
should ever hold up their hands in horror at the prospect of educating
Congressmen or their constituents on matters that profoundly affect our
lives. After all, Socrates was able to demonstrate geometric proofs to a
slave boy.

Not only in the field of atomic energy but in many other fields as
well, do we find scientists testifying patiently and effectively before com-
mittees of Congress, as to the probable consequences of one legislative

5. Cf. sees. 3-7, 10, of Atomic Energy Act of 1946, approved Aug. i, 1946 (Pub. 585,
79th Cong.).

394

SCIENCE IN GOVERNMENT

course or another. Proposed legislation for the establishment of a Na-
tional Science Foundation,6 for the expansion of public health services,
and for the interchange of teachers, students, and research workers with
other countries, evoked effective testimony from distinguished American
scientists. And year after year government scientists go before appropria-
tion committees to justify appropriations for government-financed re-
search. Just think what it means to justify an appropriation for research.
It means finding a common measure for the impact of taxation on human
lives and the probable outcome of a search into the unknown. And it
means a choice among competing proposals for disbursing national funds
in a field which includes not only many different lines of physical and
social research but also works of national defense, subsidies to agricul-
ture, and law-enforcement. And despite all the fashionable doubts as to
the commensurability of human values, these goods have to be weighed
against each other, for each public dollar can be spent only once. If the
justification of basic research under those conditions seems a dreary and
impossible task to those who have never sat across a table from an ap-
propriations committee, let me quote the reassuring comment of a scien-
tist in the Department of Agriculture:

I have been going up before appropriation committees for this De-
partment for close to forty years and I never have found a committee
that as a whole wasn't favorable to fundamental research, whether
we could show any immediate returns or not. In all of my experience,
any sound piece of research has always had their support, and I have
known them to make appropriations for such types of research even
against the recommendation of the Bureau of Budget and the Presi-
dent.7

The receptivity of our Congress to impartial scientific evidence on issues
of national significance is paralleled, I believe, by the attitudes of most
of our executive or administrative agencies. Organizations like the Bureau
of Standards, the Bureau of Labor Statistics, the Bureau of Mines, the
Geological Survey, the Public Health Service, and the many research
agencies of the Department of Agriculture seek not only to trace the
latest technological developments in their respective fields, but also, so
far as possible, to measure the human consequences of such developments
and to bring this knowledge to bear upon the administration of govern-

6. See Talcott Parsons, "National Science Legislation," in Bulletin of the Atomic
Scientists, a, No. 9 (Nov. i, 1946), 7-9.

7, Dr. Woods, in Symposium on paper by Prof. A. J. Carlson, "How Can Science
Get Support in a Democracy?" (Dept. of Agriculture Graduate School, 1939), p, 255.

S95

THE PHILOSOPHY OF AMERICAN DEMOCRACY

sntal bureaus. Many of us are discouraged, from time to time, because
one matter or another some administrative body has paid too much
tention to an outworn and disproved theory and not enough attention
the latest scientific findings. But do we not often make the same ob-
rvations about our students and even our academic colleagues? And
we try to take a long-range view of things and compare the amount o£
>-to-date scientific data that is available to present-day government ad-
inistration and used in the process of administration, with what was
•ailable, say, in the days of Bentham, we can get some conception of
st how far we have progressed along the path that Bentham charted,
.e path of molding law and administration in the light of the human
slfare and human suffering that follow therefrom.
As a lawyer I am sorry to have to report that there is at least one field
. which the scientific search for truth has hard sledding, and that is be-
re the judicial branch of government. The spirit of the contest by
red champions still dominates litigation, and for the court to go beyond
ie presentation by interested parties and to embark upon impartial
ientific investigation of its own, perhaps with the aid of recognized
ientific bodies and authorities, would appear to many judges and
wyers to be an unforgivable departure from the sporting spirit that
Lould control litigation. Yet I wonder whether we have not outgrown
ie right to rely on hired champions, whether they wield medieval battle
:es or modern theories of psychoanalysis or economics, in our search for
ie truth in courts of law.

Differences of opinion in our Supreme Court, for instance, as to the

mstitutionality or even the interpretation of statutes generally turn

Don differences of viewpoint as to the "reasonableness" of various statu-

ry requirements, and these differences, while they may turn on ultimate

hical disagreements, seem generally to be based upon divergent views

to the actual consequences of the act or the interpretation in question.

*t there is no recognized way in which the Supreme Court may call

Don any scientific body for impartial advice on the facts. The result is

.at the Supreme Court's pronouncements and assumptions on matters

economics, anthropology, biology, and technology are often made in

sregard of the sources of scientific information that are available to

Dngressional committees. Thus, for example, in the case of Alcea Band

Tillamooks v. United States, decided November 25, 1946, four justices

the Supreme Court thought that failure to pay Indians for surrendered

nds was a departure from accepted mores of government activity,

stifying an award of compensation, while three justices dissented from

e allowance of compensation on the ground that taking lands from

396

SCIENCE IN GOVERNMENT

Indians without compensation was the usual and commonly accepted
way of doing business a century ago. On this issue of political and eco-
nomic history neither party to the case presented any evidence at the
trial, and the Supreme Court had no way of calling for expert and objec-
tive testimony on an issue of historic fact.

The need for access to impartial sources of scientific knowledge is even
greater, though perhaps not as dramatic, in the lower courts. Why should
a trial judge have to choose between two hired experts testifying for one
side or the other on questions of psychiatry, medicine, chemistry, eco-
nomics, or anthropology? Would it not be helpful in the search for truth
if courts could call for testimony from panels of disinterested scientists
nominated by appropriate scientific bodies and paid not by one party
or the other but out of the same public funds that are available for
judicial salaries and other expenses of the administration of justice?

I hope that some day the American Association for the Advancement of
Science or some of its constituent organizations will give thought to ways
and means of making scientific knowledge available to our courts of jus-
tice in an objective and impartial way that will command respect both
for our science and for our law. I do not think such a project is by any
means fanciful. Our wisest judges have long recognized the dependence
of justice upon science.

I have had in mind, [said Justice Holmes,] an ultimate dependence
upon science because it is finally for science to determine, so far as
it can, the relative worth of our different social ends, and, as I have
tried to hint, it is our estimate of the proportion between these, now
often blind and unconscious, that leads us to insist upon and to en-
large the sphere of one principle and to allow another gradually to
dwindle into atrophy. Very likely it may be that with all the help
that statistics and every modern appliance can bring us there never
will be a commonwealth in which science is everywhere supreme. But
it is an ideal, and without ideals what is life worth? They furnish us
our perspectives and open glimpses of the infinite.8

There are today many practical approaches towards such a liaison be-
tween science and justice. In many juvenile courts we have trained psy-
chiatrists, criminologists, and physicians attached to the court itself and
able to furnish unbiased information to the judge. In some civil cases,
where intricate questions of geology, psychiatry, economics, or industrial
technology are involved, special masters with scientific training are ap-

8. O. W. Holmes, "Law in Science and Science in Law," Collected Legal Papers, pp.
210, 242.

397

THE PHILOSOPHY OF AMERICAN DEMOCRACY

pointed by the courts to get at the facts. Only a year or so ago new rules
of criminal procedures were promulgated for the federal courts and this
code, for the first time in our history, thanks, I believe, to the efforts of
Professor George Dession, authorizes the federal courts to appoint ex-
pert witnesses on its own motion.9 We ought, I think, to have some similar
procedure in civil cases, and particularly in constitutional cases. And
above all, when the judiciary takes this step towards an effective liaison
between science and justice, there ought to be some reciprocal step taken
on the part of scientists to see that this affair is a durable marriage and
not merely a liaison.

This, of course, is only a small part of the area in which science may
function to make government more scientific. As an old bureaucrat who
has served for more than 13 years in the Office of the Secretary of the
Interior, I may say that I can think of no more important step towards
good government than action by American scientists, through their pro-
fessional organizations, to subject the scientific assumptions that underly
our laws and their administration to systematic, scientific scrutiny. Take,
for example, our racial laws, laws which seek to control man's biological
development in this country by gerrymandered immigration quotas and
the various restrictions on citizenship and land ownership that rest on
racial grounds. Is there not some responsibility on the part of biologists
and anthropologists and other professional scientists to expose the pseudo-
science and the disproved hypotheses on which so much of this legislation
rests? Of course there may be some who will uphold these laws, whatever
the facts may be, and I am not suggesting that tracing the consequences
or the assumptions of a given course of political action will ever be
enough to defeat or establish such action as a matter of logic. Always
there remains a question of ultimate values. I shall recur to this in a
moment. For the present I am contending only that the process of gov-
ernment always involves assumptions and hypotheses as to positive fact
and that scientists can help to see that these assumptions and hypotheses
are considered in the light of the available scientific evidence. In this
process we may come to realize that every law and every ruling involves
implicit predictions and deserves to be reconsidered whenever these pre-
dictions are not borne out by the facts. That, I take it, is one essential of
the scientific approach to government and law. To the extent that this
approach is implemented in reality, government can become more scien-
tific than it is. Conversely, to the extent that we may have a reaction
against "experimenting," "guinea pigs," "questionnaires/' "theories," and

• 9. Rule 28 of Federal Rules of Criminal Procedure (1945). And see, J, H, Beuscher,
"Use of Experts by the Courts/' Harvard Law Rev., 54 (1941), 1105.

398

SCIENCE IN GOVERNMENT

"professors," government may become a good deal less scientific than it
now is.

The upshot of our argument thus far is that the activities of scientists
are just as proper a subject of social control as the activities of business-
men, irrigation water users, patent owners, or horse thieves, that this
social control of scientific research and its applications is largely ex-
ercised through the usual agencies of government, and that existing gov-
ernmental agencies in this field are more or less receptive to the influence
of scientific data impartially presented, and might be more receptive if
scientists put forth a more sustained effort to make their data available
to the agencies of government. All this, however, focuses on the role of
factual knowledge in enlightening the process of government. Is that all
there is to the fixing of social goals?

Such words as "ethics," "morals," and "the good life" have acquired,
during recent decades, the musty odor of Sunday School rooms that are
open only once a week. Under the influence of non-scientific conceptions
of ethics, and particularly under the view that conscience can give an in-
fallible answer to any ethical question, ethics during the igth century
was forced to abandon the empire it once claimed over the world of
science, industry, law, and civilization. So attenuated in its dominion,
ethics could command respect only by issuing the one command with
which every weak sovereign may secure obedience, the unbreakable com-
mand, "Do as you please/' The morality of laissez faire, applied to eco-
nomics, law, education, art, and science, reflects the bankruptcy of a
society in which no group recognizes its obligations to the rest of human-
ity. Such a fissionable society cannot, I think, long endure. Certainly it
cannot long endure alongside other societies where the objectives of all
groups are systematized and reasonably coherent.

The search for a systematized and coherent pattern of values is not a
new thing in the history of our civilization. In the works of Aristotle and
Plato, in the Pentateuch, and in the great synthesis that Scholastic Phi-
losophy made of the Hellenic and the Semitic traditions, there is clear
recognition of the fact that all human conduct is subject to moral judg-
ment because we all live in One World where all human conduct affects
human weal and woe. In the light of this recognition neither science
nor art nor education nor law can be removed from the realm in which
significant moral judgments may be passed. Conversely, modern ethics
cannot ignore the data of science in favor of the promptings of con-
science, which is itself, in large part, like common sense generally, a
compote of old scientific and philosophical theories that have been stew-
ing for a few hundred or a few thousand years. Modern ethics recognize$

399

THE PHILOSOPHY OF AMERICAN DEMOCRACY

that in so far as we pass moral judgment on acts without knowledge of
their consequences we literally do not know what we are talking about.

The physical scientist can claim credit for the conquest of energy which
has made civilization compatible with human equality by making it pos-
sible to substitute mechanical slaves for human slaves. By the same token,
he cannot any more than any other member of society escape responsi-
bility for the human suffering he helps bring to pass. And only an in-
formed appreciation of the way in which science operates to relieve
human suffering and banish ancient fears and ancient pains can assure to
science the social support that it deserves. I think that our society of
today is on the brink of rediscovering these ancient truths, and that the
famous slogan of a successful American businessman, "The public be
damned," is going to find fewer adherents in the coming generation than
it has found in the past, not only in the ranks of businessmen, but also
in the ranks of poets, painters, lawyers, and scientists. For the arts and
sciences, as for the nations, isolationism is obsolete.

Let me hasten to add that I think the pursuit of truth through science
is assuredly a good in itself that needs no ulterior justification, any more
than love or art or chess or law, conceived as an indoor sport. But when
chess is played with human pawns, the pawns as well as the players have
a right to be heard. The pursuit of truth, like the pursuit of beauty or
happiness or what is called elegantia juris, if carried on in a society of
many individuals in such a way as to bring destruction or injury to some
of them, must appear when called before the bar of some more compre-
hensive moral judgment. If the scientist lived his entire life in an ivory
tower and undertook to destroy the tangible results of his research upon
its completion, there might be some ground for the argument that society
has no right to interfere or concern itself with scientific research. Perhaps
there are some scientists who do live in such towers. A great mathema-
tician once said that the best thing about the theory of prime numbers
was that nobody could ever by any chance put it to any practical use. I
am not sure that this is still true in these Pythagorean days when our
very lives are balanced upon atomic numbers like 11235. But certainly
outside the theory of prime numbers there is no field of science that does
not have a bearing on human happiness and human suffering, and no
field, therefore, from which ethical judgment can be excluded.

Such ethical judgment may be enlightened or unenlightened. It is more
likely to be enlightened if scientists themselves, as educators, participate
in the process of public enlightenment and participate, as citizens, in the
formulation of social policy. And if, as I believe, citizenship carries a
duty to contribute knowledge, as well as taxes, in proportion to ability

400

SCIENCE IN GOVERNMENT

or income, notwithstanding Professor Bridgman's objections on both
counts,10 then the civic duties of the scientist are not negligible.

The question remains: Can ethical judgment be enlightened or is it
inevitably a magical or religious but definitely not a scientific affair? Is
there an unbridgeable gulf between the world of "is" and the world of
"ought/' such that the methods of science applicable in the former realm
are of no relevance to the latter?

I have elsewhere argued that ethics itself is, at least potentially, a sci-
ence, and that judgments of value can be scientifically analyzed, refined,
corrected, and systematized, just as judgments of time, weight, or space
can be.11 For the present it is enough to state the position in agnostic
terms. I know of no point at which the scientific search for facts needs
to stop short of complete understanding of all the relevant factors in any
problem situation.

Most supposed ethical disagreements turn, I believe, upon different
estimates as to the actual consequences of alternative forms of conduct.
And certainly the tracing of consequences of conduct is a proper domain
of science. There is, however, in the last analysis, a point at which one
must stop tracing the consequences of any course and judge that in the
light of all these consequences the course in question is desirable or un-
desirable. Does one thereupon move into another world, a world from
which science is forever barred?

To distinguish between "is" and "ought" is proper enough, just as
it is proper to distinguish between "is" and "is not." The proposition,
"Hitler is alive," is as different from the proposition, "Hitler ought to
be alive," as both are different from the proposition, "Hitler is not alive."
But this does not mean that there is a world of ought and a separate
world of is, any more than it means there is a world of being and a
separate world of non-being. The difference between "is" and "is not" is
relative; "A is not B" is equivalent to "A is C"; "Hitler is not alive" is
no different from "Hitler is dead." So, too, there is, I think, only a rela-
tive difference between is and ought. To say that we ought to avoid an
atomic war is, I think, substantially equivalent to saying that we will, in
the long run, avoid a great deal of suffering by averting such a war.

Whether I am right or wrong in considering suffering to be the only

10. It is "puerile," Professor Bridgman thinks, to say "that science has a responsi-
bility for seeing that its inventions are not misused." (The Intelligent Individual and
Society, p. 249.) And neither is it "fair," in his opinion, for society to be picking on
men of great wealth by requiring "that an unusually great proportion of that wealth
be turned back in the form of taxes." (Ibid. p. 291.)

11. Ethical Systems and Legal Ideals (1933).

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

intrinsic evil in the world, and well-being or happiness the only intrinsic
good, the fact remains that any ethical theory that purports to follow the
canons of science must use empirical terms in defining the good life, and
I see no reason why any body of empirical observations may not become
the material of science if approached in a scientific spirit. I would say
that one approaches ethics in a scientific spirit if he has what Professor
Bridgman has referred to as the scientist's religious humility before ulti-
mate facts 12 and is ever ready to revise his theory to accommodate the
facts.

Now it seems to me that the facts of ethics are as ineluctable as the
facts of color. Things appear to us as good or bad, as they appear black
or white, large or small, round or square. These observations are not in-
fallible, since, as Kant pointed out, actual observation always involves, in
addition to pure perception, a conceptual element which involves judg-
ment. But such observation, whether of color or value or the position of
pointers on instruments, offers the only possible material for empirical
testing of any theory. Such observations are subject to correction and re-
finement as we learn how to separate what is actually perceived from the
conceptual mass that the observer brings to the relation of observation.
But we cannot ever eliminate these observations from the body of any
empirical science.

If we eliminated felt time and felt weight and perception of color
from physics we would have only a circular and empty mathematical sys-
tem in which time is the measure of motion and motion the measure of
time and neither has any verifiable existence. In the same way ethics
becomes an empty logical system if immediate perception of good and
evil is eliminated, and yet our observations, in ethics as in physics, are
fallible and correctible. Such observations and judgments are perhaps not
absolute, but if they are relative to perspectives or coordinate systems we
can still hope to find formulae of translation from one system to another,
or, at the very least, realms of agreement. And though we recognize, with
Aristotle, that we cannot expect the same precision in political science as
in physics or mathematics, the fact remains that people do agree on some
ethical observations about as well as they do on most physical observa-
tions. This is shown when, for example, the Senate of the United States
passes a bill on atomic energy by unanimous vote. In fact the essence of
politics in a democracy is the search for points at which a multitude of
ethical systems with disparate starting points and divergent goals can
converge in a common observation. Without such convergences and the
political skill to discover them we should have not a society but what

12. The Logic of Modern Physics (1927), pp. 2-3-

4O2

SCIENCE IN GOVERNMENT

Hobbes aptly called a "war of all against all," on a domestic as well as
an international scale.13

There was a time when the custodians of the world's science considered
the heavenly bodies a proper sphere of scientific interest but looked with
disdain upon those who sought to apply canons of analysis to such mun-
dane affairs as the rate at which stones fall or pendulums swing or blood
flows. Yet the progress of science has always depended upon the happy
fact that some scientists have not cringed before these looks of disap-
proval or bowed before iron curtains and have ever been eager to push
the techniques of science to new fields "beyond the utmost bound of
human thought." If we are not to put ourselves in the laughing stocks
of history alongside the persecutors of Galileo, let us not set limits upon
the possibilities of ethical science. Let us not set bounds upon what is
truly an endless frontier.

13. Cf. T. V. Smith, "Compromise: Its Context and Limits," Ethics, 53 (i943)» *•

403

Science and Politics in Plans for Puerto Rico

EVERY scientific solution of a human problem involves a set of human
values. These we are apt to call prejudices if we disagree with them, moral
insights if we agree with them. In either case it is important to remember
that all scientists are human beings before they are scientists. Unless we
spell out the value assumptions with which scientists approach a human
problem, we are in danger of accepting their ethical assumptions (which,
in affairs of state, are inevitably political assumptions) under the impres-
sion that we are accepting their science. This gives us bad politics and
inadequate science. The politics are likely to be bad because scientists
do not generally make their value assumptions explicit,1 and because
beliefs that are unexamined are apt to be vague and confused. The
science that we get in this way is likely to be inadequate because it has
been confined within the framework of accepted political proprieties and
has not explored other relevant possibilities.
An excellent illustration of the role of the political factor in scientific

i. Although I am not a scientist and have no plans for Puerto Rico, I hasten to
note that my own value assumptions are inconsistent with colonialism. See F. S, Cohen,
"Colonialism: A Realistic Approach" [above, p. 364].

Published in Journal of Social Issues, 1947. Felix Cohen's legal duties as Assistant
Solicitor in the Department of the Interior involved the formulation of legislation
for Puerto Rico, including the basic law under which it now elects its own Governor.
They also involved the successful court defense of the governmental corporations,
such as the Puerto Rico Agricultural Development Company, sued by private sugar
companies in 1946. An excerpt from a letter by the author to his wife, written in
La Forteleza on Jan. 30, 1946, at the time of this intensive court case, throws inter-
esting light on Puerto Rico's problems:

"Munoz Marin kept me up till one o'clock this morning — after which I went back
to the Library of the A.G. and helped translate our brief into Spanish — talking about
all sorts of things, but most especially of his difficulties of getting his program across
to the government employees and professional groups who are consumed by inferi-
ority complexes that find form in nationalistic outbursts against 'peritos.1 The un-
educated masses, he insists, are the least nationalistic people in the world. Munoz
is a wonderful human being with a vast outpouring of energy. . . ."

404

SCIENCE, POLITICS, AND PUERTO RICO

solutions of human problems is afforded by the voluminous outpourings
of competent scientific investigators who have, in the past two decades,
studied what they call "the problem of Puerto Rico."

The major scientific efforts of the past 20 years to solve "the problem
of Puerto Rico" are embodied in the Brookings Report,2 the Chardon
Report,3 the Zimmermann Report,4 and the report of the National Re-
sources Planning Board.5 Even those who reject the unavowed political
premises of these studies must recognize their scholarly quality.6

The basic problem, as all these investigators see it, is the problem of
overpopulation, the problem of a dense and growing population on an
island with few natural resources.7 Once a problem has been formulated
in these terms, its solution follows automatically. The cure for over-
population is necessarily a reduction of population. The only disagree-
ment among the various investigators is over the means to be employed
in reducing the population of Puerto Rico. All recommend birth control
and emigration. They also recommend that living standards should be
raised, pointing out that this is generally accompanied by a reduction of
the birth rate. The recommendations of our investigators on this score

2. Victor S. Clark, et al., Puerto Rico and Its Problems (Brookings Institution, 1930).

3. Report of the Puerto Rico Policy Commission, 1934.

4. Staff Report to Interdepartmental Committee on Puerto Rico by Eric W. Zimmer-
mann, Washington, D.C. 1940. And cf. "Economic Rehabilitation in Puerto Rico: A
Report to the Interdepartmental Committee on Puerto Rico." By J. B. Matz, T. R.
Snyder, and Edna Lonigan.

5. "A Development Plan for Puerto Rico," prepared by F. P. Bartlett, Louis Strucke,
Jr., Donald F. Griffin, and Brandon Howell, for the National Resources Planning
Board. Published under the sponsorship of the Puerto Rico Planning, Urbanizing,
and Zoning Board, January 1944.

6. Without these researches those who plan Puerto Rican destiny would be mariners
without compasses. But however perfect the compass, the mariner who fails to take
account of its magnetic deviation will end up in a port he never sailed for. And how-
ever perfect the scholarship of these studies, one who rejects their pervading assump-
tions of colonialism must take account of the magnetic deviations of colonialism, if
he is not to be misled perhaps into a betrayal of the campaign in which he sails.

7. "The economic problem of Puerto Rico, in so far as the bulk of its people is
concerned, may be reduced to the simple terms of progressive landlessness, chronic
unemployment and implacable growth of the population." Chardon Report, p. i.

"The people of Puerto Rico have reached an impasse — overpopulation." Zimmermann
Report, p. 32.

"In Puerto Rico . . . population has outrun the capacity of the present economic re-
sources and organization to furnish full employment and satisfactory living conditions."
Brookings Report, p. xxv.

"Basically, of course, the problem arises from an increasing growth in population
with no land frontier to push forward and an insufficiently rapid increase in pro-
ductivity." Report ol National Resources Planning Board, p. 7.

405

THE PHILOSOPHY OF AMERICAN DEMOCRACY

differ only as to the relative importance of .these various modes of de-
population.

The "emigration" cure is as standard a prescription among contempo-
rary continental economists diagnosing the ills of Puerto Rico as was
purging or bloodletting among physicians two centuries ago. Since the
problem of overpopulation is created by an excess of 40,000 or so Puerto
Rican births over deaths every year, what could be more natural than to
believe that the emigration of 40,000 Puerto Ricans every year would
help the economic situation in Puerto Rico? That is on a par, however,
from the standpoint of strict economics, with the statement that Puerto
Rico's economic situation would be improved if matters could be ar-
ranged so that hereafter 40,000 Puerto Ricans would die of the bubonic
plague each year. The effect on the economic life of Puerto Rico of the
departure of 40,000 Puerto Ricans is not altered by the circumstances of
whether their departure from the country is by ship or on the wings of
the angels, except to the extent that those who go by ship take wealth
away from Puerto Rico when they travel — it is estimated that the depar-
ture of 40,000 emigrants each year would take about $15,000,000 per
annum out of Puerto Rico 8 — while those who go with the angels can't
take it with them. Thus emigration would be more of a drain on the
wealth of Puerto Rico and more of a contribution to the poverty of the
island, which is its real problem, than would the introduction of a new
plague.

Whether a reduction of population achieved through birth control
would help solve any of Puerto Rico's problems is perhaps an academic
question. Puerto Rican cows give little milk,9 and Puerto Rican babies
die of intestinal disorders, particularly at weaning, about 25 times as fast
as babies in the States.10 In so far as birth control leads to a better spacing
of births and thus permits longer periods of breast feeding, it tends to
cut down the infant mortality rate and thus to increase the population.

Assuming, however, that emigration and birth control might con-
ceivably be pressed to a point where the Puerto Rican population would
decline, what then?

The approach to Puerto Rican problems in terms of overpopulation
and pressure on resources assumes that a lowering of the population
would result in each person's having a larger share of the total goods of

8. Report of National Resources Planning Board, p. 64.

9. Cows in Puerto Rico average 2% quarts of milk a day, as compared with 6
quarts in the United States and 13 quarts in Holland. Report of National Resources
Planning Board, p. 20.

10. Report of National Resources Planning Board, p. 54.

406

SCIENCE, POLITICS, AND PUERTO RICO

the community. But is there any evidence to support this assumption?
And what is meant by overpopulation, anyway?

Certainly people who say that Puerto Rico is overpopulated cannot
mean that there are more mouths than the soil of Puerto Rico can feed.
For Puerto Rico in fact, even with relatively backward agricultural
methods, produces each year more than twice as much food as it could
possibly consume, in terms of actual calories.

Perhaps what is meant is that there is a fixed amount of food, clothing,
and housing to share, and that if there were fewer Puerto Ricans, the
share of each would be larger. But this is clearly a fallacy, for food, cloth-
ing, and housing are the product of labor and if there is less labor, the
potential social product will be less. This holds not only for goods pro-
duced and consumed in Puerto Rico but for imports as well. Imports
into Puerto Rico are based, in the long run, on exports, and exports are
a function of manpower.

But if these popular conceptions of overpopulation will not hold
water, one may always resort to the abstract economic notion of an
optimum relation between population and resources and say that as pop-
ulation increases beyond that point, per capita income must, by the iron
laws of economics, decline. The only difficulty with this abstract concep-
tion is that there is no evidence that Puerto Rico has ever reached that
critical point. In fact all the evidence of history shows that when the
population of Puerto Rico was rapidly declining (in the first four decades
of Spanish control) the poverty and misery of the local population were
extreme, that in the 1760*5 the poverty of the Puerto Ricans, then num-
bered at under 50,000, was far more serious than it is today, and that in
recent decades a rapid increase in population has been accompanied by
a rise in per capita income, an increase of weight and stature, a mount-
ing life expectancy, a decline in illiteracy, and a rise in productivity
greater than the rise in population. Thus, for example, in the decade
from 1934 to 1944, when the population of Puerto Rico increased by 20
per cent, its total income increased by 170 per cent and its per capita in-
come more than doubled.11

This is a perfectly normal development. In igth century Europe the
rate of population increase was twice as high in England as in Italy or
Portugal, and twice as high in Denmark, Germany, and Holland as in

11. Daniel Creamer, The Net Income of the Puerto Rican Economy 1940-1944
(1947), p. 22. Part of this increase reflects rising prices. And part of this increase, during
the last three years of the decade, reflects war expenditures. But this is not necessarily
a temporary affair. Puerto Rico will have a war on its hands — a war against disease,
illiteracy, and poverty, for at least a generation to come.

407

THE PHILOSOPHY OF AMERICAN DEMOCRACY

Spain.12 In each of these cases the relatively high population increase
reflected what it reflects in Puerto Rico, not apathy or ignorance, but
rather improvement in standards of health and education, development
of science and industry, and a general rise in living standards.

But these are mere facts and facts cannot stand up against theory. The
theory of Puerto Rican overpopulation, though it has never been con-
firmed by historical or statistical data, rests upon deep-seated beliefs and
emotions from which few scientists are immune.

The fear of population increase, to which Malthus gave the dignity of
a scientific-sounding pseudo-mathematical formulation, is a deep-seated
fear in contemporary civilization, a modern form of misanthropy and
ochlophobia. It expresses itself characteristically in hysterical fears that
we are running out of essential commodities or that we are being overrun
by immigration. It is this fear, and not any solid historical or statistical
evidence, which leads us to ascribe poverty, wherever we find it among
people for whom we feel no special affection, to overpopulation. This
fear shows itself in the adjectives that our investigators use to character-
ize the increase of population in Puerto Rico, — "appalling/* 13 "implaca-
ble/' 14 * 'terrific." 15 An American boosters' club describing the same pop-
ulation movement in its own home town, or a fond father announcing
a population increase in his own family, would use very different adjec-
tives. These choices of adjectives do not illuminate the physical facts,
but they tell us much about the value judgments of the adjective-user.
And they make it clear that overcrowding is not a matter of geography.
Overcrowding is a state of mind. Congressmen who did not like immigra-
tion thought that the United States was overcrowded in 1797, when its
population was in the neighborhood of 5,ooo,ooo.16

To say that Puerto Rico is overpopulated is to say that there are too
many Puerto Ricans. That is essentially a value judgment, although not
commonly recognized as such. Such value judgments are characteristic in
the appraisal of colonial economies or alien peoples. People who don't
like Chinese or Hindus are always blaming the difficulties of China and
India on overpopulation, although when the very same difficulties of sick-
ness, ignorance, poverty, or joblessness occur in their own families or
among people they like they don't talk about overpopulation but rather
call the doctor or send the youngster to school or see that he learns a

12. See "Population" in Encyclopedia of The Social Sciences.

13. Chardon Report, p. i.

14. Ibid.

15. Brookings Report, p. 548.

16. F, S. Cohen, Immigration and National Welfare (New York, League for Industrial
Democracy, 1940), p. ai.

408

SCIENCE, POLITICS, AND PUERTO RICO

trade or profession or figure out new ways of making a living. It may well
be that if Puerto Rico would beg, borrow, or steal, or produce, or import
40,000 doctors, teachers, scientists, technicians, and engineers it would get
along much further in the raising of its living standards than it would by
inducing 40,000 of its best workers to emigrate to other countries. Cer-
tainly the problem of a poverty which is 400 years old cannot be wrapped
up in diapers and laid at the door of a population figure that is not yet
ten years old.

The wisdom of love is a different kind of wisdom than the wisdom of
hate. Scientific monographs on Puerto Rican overpopulation have much
to learn from the ancient sage who wrote: "Where there is love two can
lie in comfort on the edge of a sword; where there is no love a couch
sixty cubits wide is too narrow."

But the theory of Puerto Rican overpopulation does not admit emo-
tional sources any more than it offers historical evidence. Rather it is put
forward as an inevitable deduction from two other firmly held doctrines:
first, that Puerto Rico is a land peculiarly lacking in resources; and
second, that only a land rich in resources can enjoy a high standard o£
living.

But these assumptions, in turn, rest on no discernible scientific evi-
dence.

(i) The proposition that Puerto Rico lacks natural resources, which all
of our investigators assert or assume,17 is certainly not supported by the
evidence of geology. We know that there are at least four substantial
deposits of iron ore on the island. One at Las Mesas is estimated to con-
tain four hundred and fifty million tons of iron along with four and one
half million tons of nickel and between six and seven million tons of
chromium.18 Other known deposits of iron, manganese, kaolin, pottery
clay, gypsum, marble, and limestone are of unknown extent because, ac-
cording to the 1944 report of the Puerto Rico Planning Board, "they have
never been thoroughly explored with modern techniques and methods"
(p. 31). The same may be said of reported deposits of phosphates, mer-
cury, copper, tin, silver, bismuth, molybdenite, and lignite coal. Only
within the past two or three years have comprehensive geological studies
been inaugurated on a serious scale,19 and they are still in their infancy.

17. Brookings Report, p. 11; Chardon Report, p. 63; Zimmermann Report, p. 46;
Report of National Resources Planning Board, p. 34.

18. Report of National Resources Planning Board, p. 32.

19. In 1947 the U.S. Geological Survey spent about $5,000 of Federal funds in
Puerto Rico and about $18,000,000 in the rest of the country. The Insular Government
supplemented the Federal appropriation with a contribution of $72,500, three times as
much as it contributed in 1946.

4°9

THE PHILOSOPHY OF AMERICAN DEMOCRACY

Yet the very same authorities who admit that we don't know what the
mineral resources of Puerto Rico are do not hesitate to assert that Puerto
Rico "has no forests or minerals to speak of" and therefore must con-
tinue to rely upon an agricultural economy.20

The real fact of the matter is that we never know how rich any country
is in resources until it begins to industrialize, to develop real needs and
markets for natural resources and to develop a large class of scientifically
trained citizens who know how to locate resources and recognize them
when they see them.

We are accustomed to speak of the United States as a country rich in
resources, when the fact is simply that while our resources are probably
no better and no worse than those of the rest of the world, we have ex-
plored and mined our earth more thoroughly than many other countries
and we have developed ways of making effective commercial use of what-
ever we found. So have the Germans and the British and all other na-
tions in which the general level of science and technology is high. Known
resources are the only resources that can be used or tabulated. And
known resources are a function of knowledge.

True, the amount of earth available to each Puerto Rican is less than
is the case with the United States generally, but not less than the amount of
earth available in many states and countries with very high living stand-
ards. And after all, Puerto Ricans in search of natural resources are not
limited to the earth. In the United States we take nitrogen out of the air
and seaweed out of the sea to make fertilizer, we take fish, pearls, and
magnesium out of the ocean.

To say that a country suffers from lack of resources is only a fatalistic
way of saying that it suffers from lack of resourcefulness. What is a re-
source at any given time and place is a function of the prevailing tech-
nology. Petroleum was not a resource to the Plains Indians. More than
one-seventh of the solid content of the earth's crust is aluminum, but
this becomes a resource only when a people attains a very high level of
scientific and industrial efficiency. Whether waterfalls are sources of heat,
light, and power, or merely obstacles to navigation, depends upon the
people who own the waterfall.

To say that Puerto Rico lacks resources is to say that insufficient ap-
plication has been made of human intelligence to the development of
a higher standard of living in Puerto Rico. But the former way of putting
the matter seems to make Puerto Rican poverty a result of pre-human
or super-human forces, in the face of which mere men and women are
powerless. The latter way of putting the matter, which is perhaps equally
20. Report of National Resources Planning Board, p. 34.

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SCIENCE, POLITICS, AND PUERTO RICO

one-sided, has at least the practical advantage of pointing to ways of
remedying the situation.

(2) Closely related to the prevailing assumption that Puerto Rico lacks
natural resources is the idea that lack of natural resources inevitably leads
to a low standard of living. Here we have another myth that blocks clear
thinking and vigorous action on Puerto Rico's problems. Massachusetts,
Rhode Island, and New Jersey have a higher population density than
Puerto Rico, and their mineral and agricultural resources are inferior to
those of Puerto Rico; yet they have among the highest living standards
in the United States and in the world. The fact is that the states of the
Union which have the highest endowment of natural resources per capita,
states like Mississippi, Tennessee, and Oklahoma, stand at or near the
bottom of the income scale. In Europe the highest living standards exist
in countries like Switzerland, which has almost no material resources,
and Holland, which has a population density considerably higher than
that of Puerto Rico.21 For centuries Holland has had to wage an unend-

21. My good friend, Clarence Senior, the distinguished director of the Puerto Rico
Social Research Center, considers this reference to Switzerland misleading because
he thinks Swiss prosperity depends largely on the beauty of its scenery. This supposed
dependence of the Swiss economy on scenery, however, is just another of the myths
by which people are taught to accept their economic lot in life as a product of geog-
raphy and other mighty forces beyond human control. In fact Swiss exports bring
more than 7 times as much revenue as the Swiss tourist industry. See Rappard, "La
Suisse et la marche* du monde," in Die Schweiz als Kleinstaat in der Weltwirtschaft
(1945)» PP* 5®~51' But it is even more important to note that the tourist industry is
not brought into being by scenery (if it were, there would be thriving tourist in-
dustries in many lands that tourists never tour). A successful tourist industry is above
all a human product of institutionalized hospitality, tolerance, pre-vision, and many
skills, which the Swiss have developed to a fine art.

Similarly, Mr. Senior considers my references to the prosperity of Holland mis-
leading because I do not take account of the Dutch Empire. But whether or not the
Dutch Empire is profitable (and distinguished economists like Sir Norman Angell
have calculated that their empire costs the Dutch more than it brings them), the
fact remains that the prosperity of Holland is older than its empire. The Holland that
produced Grotius, Rembrandt, and Spinoza became the commercial, intellectual,
and cultural capital of Europe while it was still struggling to establish its independ-
ence from Spain.

It is true that most rich countries have colonies, just as most rich people have
servants. But servants and colonies are, in general, marks of prosperity, not its causes.

Materialist historians seize on irrelevancies when they attribute the prosperity of
Holland or Switzerland to the fact that the Swiss have stayed out of wars or that
the Dutch have spent whole centuries fighting, to the fact that one country is on the
ocean or the fact that the other country is not, to the fact that one country is moun-
tainous or to the fact that the other country is flat.

The real key to the prosperity of Switzerland and Holland is not to be found in

411

THE PHILOSOPHY OF AMERICAN DEMOCRACY

ing battle against the sea to maintain even the little land that it has.
Yet it became one of the great maritime powers of the world, though it
has no minerals and no timber. Or consider Denmark, the traditional
supplier of butter and bacon to the British Isles, which is so poor in
agricultural resources that it has to import most of the fodder on which
its butter and bacon production is based.

The highest living standards in the world — whether we measure living
standards by average income or by such factors as low infant mortality
and high distribution of mail, telephones, newspapers, and other ap-
purtenances of civilization — exist in states like Massachusetts, Rhode
Island, and New Jersey and in countries like Switzerland, Holland, Eng-
land, and Denmark. What do these states and countries have that Puerto
Rico doesn't have? They do not have more farm land per capita or more
minerals or more of any other material resource. They do not have easier
access to markets. Puerto Rico is closer, in terms of transportation costs,
to the seaboard cities of the United States with more than half of the
nation's buying power than is Pittsburgh or St. Louis. What these states
and countries do have is more productive workers, that is, healthier
human beings with more mechanical training, more general education,
more professional skill and industrial know-how, more commercial and
scientific knowledge. These are the things that Puerto Rico needs. The
problem of Puerto Rican poverty will be solved not by a greater co-
efficient of soil per capita but by a greater coefficient of health and skill.

These intangible sources of prosperity do not come, like the sun and
the rain, to those who only stand and wait. They are the fruit of pas-
sionate struggle, and a society must discipline itself to forego many
luxuries if it is to assure to all its members the necessities of good health
and education,22 That is why philosophies of inaction that glorify the

their size or shape or distance above or below sea level, or in any other respect in
which they differ, but rather in the respects in which they are identical. These two
nations, for at least three centuries, have been strongholds of tolerance, welcoming
diversity at home and offering refuge to foreigners of many faiths and skills (see
Bruschweiler, "Industrialisierung and Verstadterung in der Schweiz," in Die Schweiz
als Kleinstaat in der Weltwirtsckaft, p. 323, n. x); they have established freedom on
the foundations of tolerance, and democracy on the basis of universal education (op,
cit., p. 332); they have valued learning and skill in every art and every vocation.
Where these human values are found, whether in little low countries like Holland,
or in little high countries like Switzerland, or even in big low-and-high countries like
the United States, prosperity has always followed.

22, Mr. Clarence Senior, who has been good enough to read this in manuscript,
and who, with his colleagues at the University of Puerto Rico, has given much
thought to the problem, wonders whether Puerto Rico can afford to give adequate
education to all its children, and observes: "The island is now spending about twenty-

412

SCIENCE, POLITICS, AND PUERTO RICO

status quo commonly make the world turn on race, climate, geography, or
other things we can do nothing about, while progressive philosophies of
action emphasize always what man can do to remake his environment,
his physique, his cultural heritage, and his society. The chief cause of
human poverty is not the shape of the earth or the position of the stars.
The chief cause of poverty is poverty. Most men are poor because their
parents were too poor to endow them with lands, homes, and factories, or
with the intangible capital of a skilled trade or learned profession. The
poverty of a people thus reflects history more than it reflects geography.

The people of Puerto Rico are seeking to achieve a new union of New
World and Old World values and a higher living standard than Middle
America has ever known. In this task they need time more than they
need space. For centuries Puerto Rico has been a pawn of empire. In
1900 only 10 per cent of its children went to school. The present economy
of the island reflects the past of its people more than it reflects the shape
or size of the island. That is why despair over low living standards and
low acreages is less significant than concern with changes that exhibit
the dynamic of the Puerto Rican people. In the first two decades of this
century the proportion of children in school quadrupled. In each decade
of the century the value of Puerto Rican manufactures has jumped by
40 per cent or more. It is difficult to find parallels to such progress. It is
difficult to find grounds for despair when one sees the Puerto Rican econ-
omy in dynamic perspective.

Today Puerto Rico is struggling to forge a progressive democratic phi-
losophy of human worth, in which men are valued not according to their
ancestry or scarcity but only on the basis of what they can do. When

four per cent of its governmental revenues on education. To put all the children in
school and give them the proper services will require well over fifty per cent of all
governmental expenditures."

The real problem, however, is not whether Puerto Rico can afford to educate its
children but whether it can afford not to educate its children. Ignorance and illiteracy
are extravagances that no poor country can afford. From the purely commercial stand-
point no seed brings as high a cash return as seeds of knowledge. Even the United
States Chamber of Commerce now recognizes that its early opposition to increasing
governmental expenditures (and increasing taxation) for public education was a mis-
take from the dollars-and-cents standpoint and that the increased outlays for education
have been investments "serving an expanding economy by progressively upgrading
the productive skills and management aptitudes of the American people." See U.S.
Chamber of Commerce, Education: An Investment in People 1945, p. 5 et seq. Hawaii
established schools before it had any income. Today its sugar-production per acre
is twice as high as Puerto Rico's, and on its principal island, Oahu, which is about
as densely populated as Puerto Rico, one person out of eight has a telephone, as
compared with one person out of 83 in Puerto Rico.

4*3

THE PHILOSOPHY OF AMERICAN DEMOCRACY

such a philosophy becomes an integral part of Puerto Rican life, the lack
of material resources will be as little of an obstacle to the heights of cul-
ture and prosperity as are the lack of material resources to our oldest
living democracies, Holland and Switzerland. When men hold up their
heads in self-respect, it makes little difference whether the material re-
sources they need are under foot or a thousand miles away. Geography
then sets up no limits on living standards; it sets up only headaches. But
what else are heads for?

In a free economy men who do donkey's work must live on donkey's
wages. Puerto Rico is a poor country because it exports matter and im-
ports mind. For decades, under a twisted colonial economy, it has been
exporting tobacco and importing cigarettes, exporting raw sugar and im-
porting candy, exporting cotton and importing dresses, exporting raw
hides and importing shoes — not enough shoes to save its children from
hookworm, but almost all the shoes its people have been able to buy.
Any country that exports matter and imports mind is bound to be poor,
though it be as rich as Arabia in natural resources. A country attains a
high standard of living only when it imports matter and exports mind,
as do countries like Switzerland or England or states like Rhode Island
and Massachusetts. For the mind that is exported — the difference be-
tween raw metal and watches — remains at home; when matter is ex-
ported, it is forever lost. Puerto Rico can attain a high standard of liv-
ing only by developing the commercial, industrial, and cultural skills
that have been attained in other lands of equal population density. But
this solution of its problems is barred by the political preconceptions
that have underlain 20 years of investigating and reporting on "the prob-
lem of Puerto Rico."

What are these preconceptions?

First, there is the notion, the illegitimate offspring of modern material-
ism, that production of material goods, and particularly of food, is the
key to a sound economy. This may have been true seven thousand years
ago, when a hundred adults could escape starvation only if 99 worked
at food production or food gathering. It is not true today when a hun-
dred adults can be well fed on the food producing activities of 20 or less
of their number. But the old rural attitude of suspicion towards com-
merce, cities, and the enterprises of civilization persists and serves to block
the road of economic progress. Its outcroppings are seen in such sen-
tences in the Chardon Report as, "These emigrants should go to settle
farm lands, not to be exploited as wage laborers" (p. 7). It takes vision
to see how the wage laborer who assembles trucks contributes to our food

•414

SCIENCE, POLITICS, AND PUERTO RICO

supply and other necessities of life. But where there is no vision the
people perish.

There is a second preconception that has limited the utility of past
scientific studies. This is the notion of autarchy. The false ideal of self-
sufficiency arises as a specter whenever industries are proposed for Puerto
Rico which would depend upon imported raw materials or continental
markets. Is it fear of high freight costs that bars the importation of fuels
and raw materials from South America? If so, cannot Puerto Rican ships
turn freight itself into a source of insular income? True enough, con-
tinental markets might be closed some day to Puerto Rican watches. But
is there any guaranty that they may not be closed to Puerto Rican sugar?
An expansive economy cannot be built entirely on fears.

Finally, there is the factor of racism that injects itself into almost every
appraisal of Puerto Rico's future. The thought is seldom expressed by
economic investigators, but seldom absent from their thinking, that
Puerto Ricans are organically less capable of operating watch factories,
insurance companies, or telephone systems, than continentals. Even self-
respecting Puerto Ricans are not immune from this sense of inferiority,
though they commonly seek compensation for it in the notion that they
possess a superior spiritual culture to that of their northern neighbors.
Maybe they do, but if so, it has not yet clearly shown itself in great
works of music, poetry, or philosophy. Neither the sense of inferiority
nor the asserted spiritual superiority is supported by any scientific evi-
dence. Puerto Ricans in New York are as competent in their trades and
professions as any other people who have had the same type of training
and preparation for their work. Puerto Ricans in New York live on a
higher standard of living than their countrymen at home, not because
they have more land or fewer babies, but because they are part of a
greater human effort to open up to each child the potentialities of human
existence and human dignity. Because a Puerto Rican boy (or girl) in
New York can get pure water and a college education free, he is not
doomed to spending his life doing a donkey's work at donkey's wages.

The people of Puerto Rico today are struggling to free themselves
from the political preconceptions that have doomed so many of the plans
of the past to futility. This struggle has not yet been clarified; as yet it
has no philosophy and no plan of campaign; it moves forward even under
banners which call for retreat. Yet it moves. Learned economists prove
conclusively that Puerto Rican wages cannot rise unless population drops.
Yet wage levels and population levels both reach new heights. In Puerto
Rico, at least, action is sounder than theory. Utilitarian efforts, backed

415

THE PHILOSOPHY OF AMERICAN DEMOCRACY

by effective legislation, to develop new resources and new industries, to
improve communication and transportation, to raise the level of general
and vocational education and to bring pure water to the people, are
replacing the old futilitarian refrains on the inability of the soil to sup-
port its offspring. Racism is almost conquered. Autarchy has been dis-
carded even by the independentistas. And more and more the people re-
fuse to accept a colonial economy based on the export of matter and the
import of mind. When the scientists have caught up with the wisdom of
the people and learned to work in harness with those who represent the
moral and political values of the people, they will find themselves playing
a leading role in the world drama of our age. For such action research,
directed not to the reduction or dispersal of a people but to the conquest
of poverty, can be a decisive part of the struggle against colonialism and
the drive of the little peoples of the earth for a fair share in the earth's
civilization.

416

The Democratic Faith

WAR, SAID Clemenceau, is too serious a business to be left to the generals.
So we may say today that international relations are too serious a busi-
ness to be left to the diplomats. It is good that all of us should give our
best thought to the question that concerns all our lives.

Can democracy survive?

Can we hand on to our children the freedoms that our fathers won for
us?

The air is full of words. They tell us that democracy is finished. The
columnists, the commentators, the generals, and the diplomats all assure
us that the forces of democracy cannot defend Korea or Indo-China — or
Iran — or Japan or Germany or France or Italy against communist ag-
gression. They talk only of strategic evacuations, fighting retreats, and
atomic reprisals. And we are told that if Western Europe falls before
invasion or revolution our own democracy cannot survive as an island
in a communist world.

The chart of communist aggression is graphic enough.

But nobody has yet charted a more serious but less obvious danger, the
danger that we shall give up our freedom under the illusion that we are
defending it, and that the methods of the communist police state will
strangle our democracy in the name of anti-communism.

The first result of any war, according to an old Oriental proverb, is
that the adversaries adopt each other's vices. It is more than three
decades now since American troops landed at Archangel. Since then, we
have been engaged, off and on, in cold war, hot war, and lukewarm war
with the Soviet Union, on battlefields from Archangel to Greece and from
Greece to Korea. During these war years the Soviet Union has taken over,
one by one, all of the vices of capitalism which the communists once
denounced: government control of labor unions, lengthening working
hours, growing disparity of income between the upper and the lower
classes, militarism, increasing expenditures for armaments, imperialist con-

Unpublished address before the Yale Philosophy Club, 1951, six months after the
beginning of the Korean conflict.

417

THE PHILOSOPHY OF AMERICAN DEMOCRACY

trol of "backward" areas, and rigid divorce laws. The ideals that once
won adherents to the communist movement — peace, land to the peasants,
workers' control of the shops and factories, and equality of income — have
all become treasonable in Soviet territory. Their place has been taken
now by older Czarist dreams of Russian ports on the Pacific, the Baltic,
and the Mediterranean and of a world dominated by a little father in
Moscow.

And what has been happening to the distinctive American ideals of
freedom in these years?

We lived once in a land so free that refugees from all the tyrannies
of Europe were welcomed by the million, a land so free that no American
citizen needed to ask leave of a State Department clerk to quit American
soil, a land so free that no citizen needed to ask any federal agency what
he could import or export, publish or say, or what organizations he could
join or support. Free we were in many ways that the world envied, free
from the menace of peace-time conscription that blighted the homes and
careers of our European cousins, free from the snooping of a national
police force, free from feudal and bureaucratic economic controls that
barred the avenues of economic enterprise and reduced human produc-
tivity, in most lands, to starvation levels. This freedom had its difficulties
— poverty, sporadic unemployment, recurrent depressions, and the op-
pression of minority groups had not been eliminated, and we had our
share of political corruption — but for these difficulties the simple cure,
we thought, lay in more democracy — especially more participation in gov-
ernment and industry by depressed groups like women, Negroes, immi-
grants, and wage earners. One by one we have lost many of these free-
doms. Today we are in danger of losing quickly those that remain to us.
If that happens, and if the various bureaus that will control each aspect
of our lives are completely coordinated (in the name of American ef-
ficiency), we shall have the communist or totalitarian state, whatever the
name which it may be called.

Here, then, is the dilemma of democracy: "Freedom free to slay herself
and dying while they shout her name." Is that, in Tennyson's words,
all we have: a choice between defeat and suicide, a choice from which we
can be saved only by a miracle of bad judgment in the Kremlin or a
miracle of resurgent morale and power in Western Europe?

Perhaps the difficulty in which we find ourselves is inherent in the
terms with which we have formulated our problem. Democracy as a
pleasant ideal for comfortable times, as a source of waste motion and
inefficiency that only very prosperous societies can afford — such democ-

418

THE DEMOCRATIC FAITH

racy cannot survive the present crisis because such democracy is already
dead — if, indeed, it ever was alive.

Let me suggest that our dilemma disappears if we go back to a view
of democracy that was fashioned in times when the forces of freedom
were far weaker than they are today, a view of democracy that is implicit
in the declaration of our national independence in 1776. What underlay
that declaration was a conception of human power, the hypothesis that
a society's productive forces are realized only to the extent that every
member, regardless of race or rank or creed or birth, is free to make
his distinctive contribution to the common good, and is equally responsi-
ble to common standards of social decency. In that view, as Justice Jack-
son once said, "Liberty is not a luxury to be enjoyed or a theory to be
defended; it is a weapon to be used."

So viewed, the theory of democracy becomes a guide to the unfolding
of vast potential forces of our people, our civilization, and our aspira-
tions. The popular antithesis between democracy and efficiency is the
invention of authoritarians who never have accepted the theory of de-
mocracy. Let us leave to them the unpleasant dilemma of their inven-
tion: the choice between domestic and foreign dictatorship. Let us ask
ourselves, rather, how the vast potentials of a democratic society may
be used to engender the power that can keep such a society free.

FACING THE FACTS

The first task that faces the friends of democracy today is to grasp the
facts of the world before us. It is hard enough in any war to distill objec-
tive facts from the conflicting reports of opposing generals, but usually
one can find a median between the exaggerated claims of both sides. The
Korean War is perhaps the first war in history in which our own reports
present a far more terrible account of epic disaster than is given by the
reports of the enemy. Enemy forces arrayed against us in battle are com-
monly multiplied three-fold by our war reporters and generals and six-
fold by our headline writers. Patrol skirmishes are reported as lost battles.
The temporary surrounding of eighty soldiers in the course of an evacua-
tion operation was blown up by our largest newspapers into the propor-
tions of a major battle and a Dunkirk disaster. It is understandable that
a commander of a retreating force should exaggerate the odds against
him by counting only those troops of his own who are on the front and
lumping the enemy'js front-line soldiers with its reserves. It is also natural
for an American general to overlook a million or so soldiers or potential
' . ' 4*9

THE PHILOSOPHY OF AMERICAN DEMOCRACY

soldiers of his forces if they happen to be "gooks." And a general can
hardly be blamed for wanting to shock people back home who, in his
eyes, are comfortably apathetic. That journalists should follow suit is
natural enough: startling people is meat and drink to journalists. Un-
fortunately the chief result of such efforts so far has been a mood of
hysteria and despair that is hardly conducive to the most effective de-
fense of freedom.

A true picture of the Korean situation, I think, would probably show
a slight superiority of manpower and a large superiority of firepower on
the southern side of the Korean battle-lines, and a vast superiority of
morale on the northern side. If we could be certain of the facts we would
be able to gauge the relative importance of manpower, firepower, and
morale in ways that are not now within our power.

It seems probable that the distortions applied to the situation of
Western Europe are even more serious than those of the Korean scene.
Columnists, editors, and commentators keep telling us that 15 Western
European divisions face 170 Russion divisions. This is supposed to whip
up a keen desire to ship American soldiers to Western Europe, but the
effect of this forecast of a hopeless struggle appears to be quite the op-
posite. Actually, nations of Western Europe from Spain to Finland and
Turkey have more than 2% million men under arms and a reserve of
trained manpower that probably exceeds 6 million. Whether more of
these reserves should be under arms today is more a problem of will,
morale, or wisdom, than of material power.

What then, we need to know, is wrong with the will, the morale, or
the wisdom of the non-communist world?

FEAR AND HOPE

The panicky feeling that has swept our land in recent months, with
reports of democratic defeats in Korea and forecasts of more defeats in
Europe, should help us to understand the panicky feeling that has swept
Europe for several years. Fear is a disorganizing emotion that cannot
be countered by inducing people to be afraid of fear. Fear can only be
countered by hope. And American democracy cannot inspire hope in its
Korean or its European allies, or even in its own soldiers, unless it
stands for something better than the preservation of the status quo.
The weight of our armed forces thus depends in the last analysis upon
the capacity of democracy to mark a path of hope, a path of change
from the miseries and injustices that oppress our world to a better era.
It is because the communists proclaim such a hope, however insincerely,

420

THE DEMOCRATIC FAITH

that they are able to win the heroic (we may call it fanatical) devotion of
millions of allies. Cannot democracy proclaim a larger and more solid
hope for suffering humanity?

The task of raising the hopes of the world is a task for which American
leaders in years past have shown great capacities. Even those who
disagreed most vigorously with Franklin D. Roosevelt's domestic or
foreign policies could recognize his great genius for arousing hope in
the hearts of the American people and even the people of the rest of
the world (so that his name is still pronounced with reverence in
Russia, Italy, and China). Economic experts scoffed when he spoke of
doubling or tripling our national production, and military experts
scoffed when he ordered factories to multiply aircraft production
forty-fold, but, as usual, hope and faith won out over the cynics. Where,
today, will we find such voices of hope in the free world?

The high hope that will sustain men in valleys of shadow cannot
come from the mechanics of voting. Still less can it come from fear of
communism. But, democracy, as a faith in the power of freedom, is a
dynamic and manifold thing. Within it are a myriad of human hopes
differing from each other in direction, yet having a common basis in that
they all require a climate of freedom for their own development. Free-
dom of worship is a treasured part of our democracy. To sustain such
freedom becomes a sacred obligation of Christian and Jew and of those
whose only faith is the cause of truth and brotherhood. These faiths,
because they point to a better world, can become beacons of inspiration
in a common democratic cause. So, too, can every movement within
the democratic world that looks to the remedying of injustice and to the
building of a healthier and happier humanity. A labor movement that
is not ashamed of the idealism in which it was born can take its place
alongside other faiths of a free world in organizing resistance to slavery.
Every group of human beings among us who have organized their
efforts to better the lot of immigrants, Negroes, share-croppers, Indians,
Americans of Oriental origin, or any other underprivileged group can
speak with a voice of hope across oceans, mountains, rivers, and iron
curtains. Such voices are not adulterated with the polite poisons of
professional diplomacy.

Americans have always been their country's best ambassadors. G.I.'s
distributing cigarettes, and befriending orphan waifs have been far
truer representatives of American decency and generosity than any of our
consuls. The letters of American immigrants to their relatives abroad
have given a far better picture of American democracy than the state-
ments of our statesmen. The self-sacrifice of American missionaries and

421

THE PHILOSOPHY OF AMERICAN DEMOCRACY

teachers abroad who have thrown in their lot with depressed groups and
helped them to share the fruits of civilization has conveyed more of the
spirit of our way of life to lands beyond the seas than any speech by
any President. These are the ways in which we have reached past
emperors and dictators to the hearts of their people. Wendell Willkie
saw and reported the great reservoir of goodwill towards America
that had been built in these unofficial ways. To repair and rebuild
these reservoirs with all the diversity of effort that democracy does not
fear is a more important task today than most of the so-called "practical"
phases of national defense.

All this is very general, and unimportant unless we go on to ask:
What concrete programs can the friends of democracy submit today
to a world that desperately needs some hope with which to organize its
life-forces?

To answer such a question comprehensively is a task for which I
have neither the time nor the brains. But let me suggest three items that
seem to me to be a necessary part of any program of democracy that can
beat the programs of communism in the world market.

First among these is the program of

(/) An International Police Force

Today, after many decades of discussion by poets and philosophers
we have a United Nations Police Force in being. It is fighting in Korea.
It represents an effort by most of the nations of the world to protect
20 million South Koreans in their right to determine their own eco-
nomic and political destiny.

If this effort were large enough it could remove the fear of invasion
from most of the world. The only thing wrong with this international
police force is that it is too small for the job it faces.

An American businessman hiring watchmen for his factory, or an
American city council hiring policemen to protect the peace, would not
run into any of the difficulties that the diplomats and the generals are
inventing. The question would be a very simple one: How many men
are needed, and will they work for reasonable compensation? We now
pay our soldiers, of all ranks, an average annual wage* (in case and food)
somewhere in the neighborhood of $1,800, and if we did away with
conscription and relied wholly on a volunteer army we would probably
have to raise this figure to what we pay our policemen — an average
wage of about 12,500 per man per year, which is what the Federal
Government insists that private industries pay as a minimum wage for

THE DEMOCRATIC FAITH

the hours that a soldier gives to his job — say 12 hours a day for 275
days. If we offered compensation at American wage standards for service
in a Legion for Democracy or a United Nations Police Force, we could
speedily enlist 20 million volunteers (or more, if more were needed)
among the non-communist nations of the world, and the cost, even if
we had to pay every cent out of our own pockets, would still be less
than 20% of our national income and less than half of what we spent
annually on defense in the last war years.

It is true that the morale of such a force would depend in large
part upon the sense of pride that could grow out of an accomplishment
of which the world has dreamed for centuries. It is also true that we
should have to make a sacrifice of our racial prejudices before we could
assume leadership in the organization of forces to which the colored
races of the world would probably make the largest contributions. We
should have to make it clear that such a force was truly an international
peace force and not an agent of American imperialism or aggression.
But these are tasks which are not impossible if we attack them with
a faith in democracy.

Not the least advantage of such a program is that it eliminates the
issue of German and Japanese rearmament. Nobody is worried at the
fact that many German volunteers are now fighting in the French
Foreign Legion in Indo-China. These German volunteers are no threat
to the French or the Poles or to the German economy; on the contrary
they sometimes send home pay checks.

The disarmament of the old Axis powers, Germany, Japan and Italy,
was one of the goals of World War II. A million American casualties
and more than fifteen million casualties in the ranks of our allies were
the price paid for that accomplishment. If we now repudiate that
achievement, we prove to a skeptical world that American foreign
policy is a shifting and unreliable thing. If the United States does not
keep faith with its own dead, how can it be expected to keep faith with
foreigners?

Recognizing all this, we must still understand that Axis disarmament
has established a power vacuum. Moving into power vacuums has been
a specialty of communist forces since 1917.

Neither Axis rearmament nor Axis disarmament can provide a solu-
tion to the free world's defense problem. What then? Our dilemma
is beyond the ability of statesmen to solve because statesmen are men
who think about states, and solving this problem requires us to think
about people. A United Nations Police Force, like all other specialized
agencies of the United Nations, would employ people who would be

4*3

THE PHILOSOPHY OF AMERICAN DEMOCRACY

responsible to the United Nations and not to any national government.
Voluntary enlistments of Germans, Japanese, or Italians in such a police
force as could protect any nation from aggression would give a tre-
mendous impetus to the cause of world peace by removing the fears
that drive men to war. Especially would this be the case if such a Police
Force were given constructive peacetime tasks in humanity's permanent
war against preventable disease and other unwilled disasters.

The threat of a resurgent German militarism is the Soviets' chief
bogey-man in whipping Poles, Czechs, Austrians, Frenchmen, and war-
weary democratic Germans into an anti-American attitude, and the
threat of a resurgent Japanese militarism provides a similar bogey-man
for Chinese, Indo-Chinese, Indonesian, and Filipino patriots who re-
member the tragedies of Japanese aggression. Participation by millions
of German, Japanese, and Italian nationals in a decently paid and con-
structively employed U.N. Police Force would aid in the denationaliza-
tion and the economic recovery of Germany, Japan, and Italy, would
vastly strengthen respect for U.N. decisions in Korea and elsewhere, and
would doom a course of world conquest by the Soviet Union or any
other nation to hopeless futility. Such a program will cost money, and
as usual the American taxpayer will pay the lion's share. But who, in
these days, is selling cheaper or better insurance against communist
conquest?

(2) The Open Door

Second of the proposals that I should like to put forward as part of a
democratic program for 1951 is The Open Door. The old-fashioned
American faith in the free competition of ideas, the free interchange
of goods, and the free mixing of people has been a major casualty in
our thirty-year-old cold war with communism. Like hysterical and
terrified old ladies, we have been running around our house bolting
doors and windows. Our fear reactions have assumed a standard form:
stop recognizing or talking to bad countries; embargo shipments to them;
stop travel and communication between Americans and foreigners from
bad countries. In, this fear-reaction we throw away the great strength
of democracy, which we understand, and grasp at the weapons of dictator-
ship and secrecy, which no free nation ever learns to handle effectively.
It is characteristic that in a democracy like ours such totalitarian weapons
generally end up in the hands of hopelessly incompetent officials, since
men of vision and integrity do not accept police-state jobs.
Our experience as a nation indicates that our open doors to im-

424

THE DEMOCRATIC FAITH

migrants have served to democratize tens of millions of men, women,
and children who came to these shores from the Old World and hun-
dreds of millions who stayed behind. Those who came from the various
despotisms and slaveries of Europe, Asia, and Africa (very few of our
immigrants came from free nations like Switzerland, or i8th century
Holland, or soth century Britain) learned the ways of democracy, and
each immigrant generally gave a dozen relatives in the old country a
glimpse of the generosity of his adopted land and of its basic idea that
what a man does is more important than where he comes from. This
human understanding, reaching across national boundaries, was the real
basis of our safety in a shooting world when armies of potential enemies
that outnumbered our standing army by 40 to i or 100 to i gave us no
apprehension.

We were well on our way to Americanizing China, which looked to
us to build its railroads and industrial plants, when we got a bad case
of jitters in the i88o's, barred Chinese immigrants, and made horned
monsters of Americans in Chinese eyes. Three decades later, when our
"little brown brothers" in Japan had come to look to American leader-
ship or help in every great enterprise of peace, we repeated our door-
slamming in Japanese faces and made inevitable a war of retaliation by
a proud and progressive people. In the 1920*5, when we saw that our
goal of "making the world safe for democracy" had been lost in a maze
of national rivalries we could not understand, we reacted with a violent
desire for isolation from everything European, and closed our doors to
European immigration, so that from 1931 to 1944 emigration from the
United States to Europe exceeded immigration from Europe to our
shores. As part of the same terror-reaction we began to make it more and
more difficult for foreign students or teachers to visit our country or
for Americans to make serious visits to foreign lands. All this slamming
of doors to individuals was repeated in the realm of ideas, where loyalty
oaths, ex parte dismissals from public services, and secret police in-
vestigations of talk and thought, have taken a larger and larger toll of
government finances and government brains. So, too, our ideal of free
trade has collapsed under the weight of tariffs, preferences, embargoes,
and quotas (first international and now extending to the interstate and
inter-county fields).

We, and not the communists, have closed the "Open Door" that was
once the symbol of American freedom to the whole world. All of our
experience shows that closing our doors has hurt us as a nation in every
way and reduced us to a position where vast resources cannot save us
from cringing fear. No greater issue faces us as a nation than the question

4*5

THE PHILOSOPHY OF AMERICAN DEMOCRACY

whether we have the moral fortitude to re-embrace the Open Door
as a symbol of American foreign policy. Whatever the techniques that
may prove most practical, the direction our effort takes can electrify
the world. Our "displaced persons" efforts and the work of the Inter-
national Refugee Organization are steps in the right direction. The
vision that inspired these efforts must extend to wider horizons.

President Roosevelt thought there was room in Alaska for 10 million
sturdy immigrants. If the Roosevelt-Ickes program for Alaskan develop-
ment had not been sabotaged by timid subordinates, millions of lives
might have been saved from the holocaust of Eastern Europe and we
would today have a potential defense force of a million fighters for
democracy along what is now a naked and exposed frontier. We would
also have a solid block of friends (a fifth column of democracy, if you
want to call it that) among the Old World relatives of our newest
citizens.

It is too late to bring to life the millions of potential immigrants
who immigrated instead to German concentration camps and to com-
munist labor camps, but it is not too late to open our doors to other
millions of brave fighters who want nothing better than a chance to stand
on free soil in defense of their liberties and their loved ones.

Men are more important than mountains. We do not have the physical
power to move the mountains of Europe or to save them from the
danger of communist assault. But perhaps we, in cooperation with good
neighbors, have the moral power to open doors to all who are willing
to stake their lives in the defense of freedom. And if we showed that
moral power to the world, the fears of our friends and the bluster of our
enemies would vanish like morning mist.

Instead of shielding our people from all contact with subversive
thoughts we ought to do everything possible to bring communists and
anti-communists together around discussion tables. Democracy would
gain new supporters, here and abroad, in the process. It did gain new
supporters, here and abroad, so long as new faces and new ideas could
move back and forth through our open doors. The great achievement
of American foreign policy was the Open Door. Have our doors been
locked forever against new faces and new ideas?

I come, finally, to a third item for a program of strength through
freedom:

(5) The Propaganda of the Deed: A China Airlift

It .is, .only a few years ago that isolationist sentiment in Congress was
strong enough to deny all funds to .a project for carrying the American

426

THE DEMOCRATIC FAITH

message over seas and over iron curtains. Today the Voice of America
is the darling child of Congressmen who once denounced it. No doubt,
this is a healthy step forward, but such progress needs to be repeated
in nonverbal media. As the Chinese say, a picture is worth a thousand
words, and a deed is worth a thousand pictures.

The most effective progaganda campaigns that the United States
ever carried out in Europe took the form of Marshall Plan Aid and the
Berlin airlift. Both programs demonstrated the power, efficiency, and
generosity of the American people in a good cause.

Could not the same demonstration be made tomorrow in the skies of
China? To drop bags of rice or corn to poverty-ridden Chinese com-
munities might not seem like much of a military achievement. Only
"crazy Americans" could do such a thing in the midst of war. Yet the
dropping of rice or corn would do more than any atom bomb to disrupt
the dictatorship in China, which rests upon the threat of starvation
and the fear of American aggression. It would demonstrate, as no words
ever could, that we have no quarrel with the Chinese people and that
their new masters are leading them in a futile death march against the
only nation in the world whose friendship could lift China from the
depths of starvation and misery to a full participation in the fruits of
medical, agricultural, and scientific progress.

Of course, the communists would say that our supply planes were
establishing contact points for resistance to communist rule. Perhaps
they would be right. Perhaps some of the supply planes we sent to the
Chinese people would be shot down. But those who did the shooting
would not endear themselves to the Chinese people, who have watched
many would-be conquerors of the world come and helped them to go.

It would cost us something to carry out such a venture in the skies
of China, or to follow up the supplying of food with the supplying of
medicines, seeds, books, and radios. The cost would be high — not in
money, but in swallowed pride. The stakes are also high. To neutralize
the Chinese Red Dictatorship is to cut in half the manpower with which
the Soviets threaten to overwhelm the free world. It is to relieve millions
of American homes from the heavy hand of conscription and from the
fear of mass destruction of that which we hold dear.

THE STOENGTH OF DEMOCRACY

The arms and the tactics that a democracy can use most successfully
are not secret weapons or secret plans. They are weapons and programs
that arise out of a trust in the better possibilities of human nature.
With that trust, which the faithful of many creeds have called trust in

THE PHILOSOPHY OF AMERICAN DEMOCRACY

God, the forces of freedom have won many great struggles against the
forces of slavery. And on the rare occasions when free nations have gone
down fighting, their defeat has been a temporary affair. Greeks and
Hebrews and Christians took captive conquering Rome and taught the
conquerors all they know of science, ethics, and religion.

For the self-styled "realist" observers of the international scene,
Europe and America are finished, freedom and democracy are finished,
and the only interesting questions are "Who was to blame?" and "Do
we surrender separately or together?" But perhaps it is time for the
cynics to step aside and yield the helms of state to hands of greater
faith in humanity and human reason.

One of the greatest mathematicians of our age has justly observed
that men are so much driven by their hates and so much quicker to
hurt their enemies than to pursue their own happiness that only under
the illusion of altruism or self-sacrifice can human beings act in their own
best interests. "It may be laid down as a general rule to which there
are few exceptions that, when people are mistaken as to what is to their
own interest, the course that they believe to be wise is more harmful to
others than the course that really is wise . . . Our unconscious is more
malevolent than it pays us to be; therefore the people who do most
completely what is in fact to their interest are those who deliberately,
on moral grounds, do what they believe to be against their interests." 1

What is true of men generally is certainly true of men in their conduct
of international affairs. Those who recognize and put to use the strength
of democracy will be denounced by "practical" cynics as "do-gooders"
and altruists. Yet only such a passion can displace the futilities of the
premature pallbearers of democracy. Only such a passion can save our
democracy at once from the menace of communist armies and from the
danger, closer at hand, that in fighting communism with communist
weapons, we may meanly lose the last best hope on earth.

i. Russell, Sceptical Essays (1928), pp. 21-22.

428

The Vocabulary of Prejudice

FOR SOME YEARS I have been asking my students whether any of them
had any prejudices, and I have not by this method of inquiry found
anybody who had any prejudices and admitted to having them. I can
think of only three possible explanations of this fact: (i) that my stu-
dents have prejudices and know they have them, but are attempting to
conceal this fact from me; (2) that my students are actually without
prejudices; and (3) that it is normal for people not to see their own
prejudices.

As my students are, generally speaking, of the highest moral character,
I must reject this first alternative theory, that of conscious deception.
And as my students are a fair cross-section of humanity, I must reject
the second alternative possibility, that they are in fact unprejudiced.
This leaves me with the third alternative, which I will accept as a work-
ing hypothesis, namely, that prejudice is something we are more apt to
recognize in others than in ourselves.

In this respect prejudice is not unique. Take the relation, for in-
stance, of fact to theory, of reverence to idolatry, of orthodoxy to
heterodoxy. Generally, the theories we believe we call facts, and the
facts we disbelieve we call theories; the attitude of respect for objects
we respect we call reverence, and attitude of respect for objects which we
hold in contempt we call idolatry; we are all familiar, of course, with
the observation that orthodoxy is my doxy and heterodoxy is the other
iellow's doxy.

As the field of racial and national feeling is generally conceded to be
a field in which prejudice plays a major role, it may be helpful to ex-

Published in Fellowship, 1953. Reprinted in part in Christian Friends (Anti-Defama-
tion League Bulletin), 1954. This article is a popular approach to the semantic anal-
ysis of prejudice treated abstractly in "Transcendental Nonsense and the Functional
Approach" (above, p. 33), then developed more concretely in "Field Theory and
Judicial Logic" (above, p. 121), and "The Reconstruction of Hidden Value Judgments:
Word Choices as Value Indictors," in Symbols and Values, ed. by Lyman Bryson, 1954.

429

THE PHILOSOPHY OF AMERICAN DEMOCRACY

amine some of the semantic data in this field to see what light such data
may throw upon the problem of prejudice identification.

Perhaps the simplest way to recognize racial or national prejudice (in
others) is to notice the ways in which people refer to other people. A
person who uses the common contemptuous or patronizing terms, nigger,
coon, darkle, redskin, paleface, Chink, Jap, Wop, Spick, Dago, Hunkie,
Kraut, half-breed, Gook, Frog, etc., may be quite unaware of the value-
overtones of these terms, but the sensitive listener, especially if he has
been sensitized in a particular direction by the repeated impact of
these barbed words against himself, immediately spots the attitude of
contempt that these terms convey.

"INNOCENT" REPETITION

Of course, the user of such terms, when challenged, may reply that
these are the terms in common usage in his group, and that he means no
offense by them. He "didn't know they were loaded." Almost all of us
repeatedly offend others by a word, a tone, or a gesture, without being
aware of the fact. It is reasonable to suppose, however, that one who
takes up, however innocently, from his environment various word
usages that offend others also commonly take up, perhaps just as in-
nocently, the implicit racial and national attitudes of separateness,
distance, and direction that prevail in that environment.

REPELLING ASSOCIATIONS

Why, one may ask, should the use of these terms indicate an attitude of
contempt? In some cases, this question is easily answered. The name itself
may indicate association with something mean or revolting or con-
temptible in the experience of the name-caller, perhaps with something
that typifies the basic avoidance reaction which human and other animals
exhibit toward various forms of filth and danger.

Such is the case, for instance, with words associating the eating habits
of a racial group with some cheap or, to the word-user, bad-smelling
or repelling food, as for example, Frog, Kraut, Spick, or Greaser. In
other words the name itself has a downward pointing direction, e.g.
coon (likening a person to a sub-human animal) or half-breed (animals
breed; humans marry and bear children) or Siwash (corruption of
sauvage, French for savage).

43°

VOCABULARY OF PREJUDICE

THE IRRELEVANT ADJECTIVE

In still other cases, the name identifies a human being with what he
justly regards as a trivial aspect of himself, such as his skin color, as
in the terms Negro, darkle, redskin, or paleface. The moral tone of the
designation is: the person so designated is peculiar; his outstanding char-
acteristic is the abnormality of his skin. Such overtones may be created
by repeated usage. The practice of most American newspapers of referring
to arrested or suspected criminals as "Negro" or "alien," if they are
either, but not as "white" or "seventh generation American" or "Protes-
tant" or "freckled," is a technique that builds popular impressions as
to the criminality of Negroes or aliens which are often far removed
from the facts. What may be called "the technique of the irrelevant
adjective" is a smear technique that is difficult to answer. When a New
York Congressman objected to Congressman Rankin's referring to him
as a "Jewish Congressman from New York," Congressman Rankin's an-
swer was, in effect: "Well, you are Jewish, aren't you? Why be ashamed
of it?"

The real issue here is not whether a racial or religious adjective is
accurately descriptive of an individual, but whether the adjective is
properly relevant to the context in which it is used. The adjective, Negro,
may be perfectly relevant to a discussion of the medical effects of sun-
burn, and the adjective, Jewish, may be entirely relevant to a discussion
of religious ritual. The relevance of these adjectives to a report of a
crime wave, however, may depend upon the inarticulate premise that
Negroes and Jews are especially disposed to criminal activity.

In some other instances, it is more difficult to understand why the
racial designation should be felt as a term of disparagement. Dago, for
instance, began apparently as a shortening of the honored Italian name,
Diego, and Wop as an abbreviation of guapo (meaning handsome), yet
both terms now carry definitely disparaging overtones, as do such
originally harmless abbreviations as Jap> Chink, and Hunkie.

Is there something about the sound of certain words that makes
them carry overtones of contempt? Is it merely a coincidence that the
English language uses one-syllable words ending in -unk to designate
so many unhonored objects, e.g. bunk, chunk, dunk, drunk, flunk, junk,
punk, sunk, skunk, stunk? Does a one-syllable word that can be uttered
in less time than it takes to think perhaps carry an overtone of con-
tempt more easily than a polysyllabic word or a precise phrase, e.g.
American of Chinese descent, instead of Chink?

43*

THE PHILOSOPHY OF AMERICAN DEMOCRACY

WHAT WORDS REVEAL

Bertrand Russell has called attention to the possibility of conjugating
value-weighted adjectives in such form as: (i) I am firm; (2) You are
obstinate; (3) He is a pig-headed fool. More generally, we can say that
almost any human characteristic can be described either in honorific or
pejorative terms. Consider, for example, how the choice between up-
grading, down-grading and neutral words may reflect a speaker's value
judgment as he describes a given human trait:

UP-GRADING NEUTRAL DOWN-GRADING

Loyal Obedient Slavish

Devoted Self-subordinating Fanatical

Tolerant Non-discriminating Nigger-lover

Courageous Bold Reckless, foolhardy

Humanitarian Idealistic Do-gooder

Realistic Suspicious Cynical

More subtle than the choice of adjectives is the value orientation that
is involved in the choice of a noun or verb to describe a given activity,
operation, or institution:

UP-GRADING NEUTRAL DOWN-GRADING

Official Office-holder Bureaucrat

Statesman Policy-maker Politician

Investigator Detective Flatfoot

Business Executive Employer Boss

Financial Leader Banker Money-lender

Orator Influential leader Rabble-rouser

Peculiar individual tastes have relatively little permanent impact
upon a social institution like language. But where many individuals
in a society share a common value standard, it is natural for them to
develop a common code. These codes are particularly important in
a political campaign. Our candidates may inspire; they never inflame,
as do the other fellow's candidates. Our candidates may demonstrate;
only the opposing candidates allege. Our candidates may clarify; only
the opponents will admit error. California's Governor Warren is re-
ported to have made the sage observation: "When government does

43*

VOCABULARY OF PREJUDICE

something for us, that's social progress; when it does something for the
other fellow, that's socialism."

The language of colonial administrators offers a particularly impressive
exhibition of double book-keeping in the political field, for here pro-
fessional and political value standards are largely reinforced by racial
or national prides and prejudices. Even in the United States today,
where at least lip service must be paid to the traditional American dis-
like for colonialism, a highly-developed system of administrative double-
talk has made it possible for our colonial officials to profess a firm resolve
to liquidate their jobs and allow their so-called wards (for example,
American Indians) full rights of citizenship, while in practice they
press steadily for increased powers and increased appropriations.

Two VOCABULARIES

Under this system of double-talk, colonial officials assist, counsel, serve,
and enlighten natives, while other persons never assist, but only abet,
never advise but only incite, never serve but only interfere, never en-
lighten but only propagandize. When native chiefs or councils make
decisions for themselves, this is called politics; when decisions are made
by colonial officials, this is called policy-making. When decisions are put
into practice by the natives, this is called manipulation; when colonial
officials handle such matters the preferred term is administration. When
native property is handled so as to increase its productive yield, this is
called development if colonial officials or their licensees are doing the
handling, and exploitation if someone else is doing the handling. When
natives take advice from the colonial officials, they are cooperating;
when they take advice from others, they are conspiring.

By carefully keeping the two vocabularies distinct it is generally possi-
ble for a professionally trained group of administrators to persuade the
public that pays its salaries that its "wards" are not yet ready to run
their own businesses, manage their own lands, hold their own free
elections, make their own contracts, or even decide when to go to bed
and when to get up in the morning, and that increasing appropriations
and powers should be granted to white officials to enable them to make
such decisions for their non-white subjects. Any white man who speaks
up in defense of native freedom is officially classified as either a crank
or a grafter or a paid agitator — a grafter if the natives pay him for
help, a paid agitator if white sympathizers pay him and a crank if
nobody pays him.

Generally speaking, eulogistic or up-grading words may be classed

433

THE PHILOSOPHY OF AMERICAN DEMOCRACY

as "we" words. They are words which we apply customarily to our
own actions and to the actions of those for whom we have a strong
fellow-feeling. Dyslogistic, or down-grading words, on the other hand,
are "they" words, used to describe the actions of those from whom we are
inclined to separate ourselves. Just as the choice between "we have
sinned" and "you have sinned" so often may mark the difference between
effective shared effort at reform and the kind of preaching that moves
only the preacher, so the subtler choice between "we" words and "they"
words can often reveal moral premises of which the speaker himself may
be quite unaware.

ARE INDIANS PEOPLE?

When, for example, a court begins an opinion in an Indian property
case by referring to Indians moving from one place to another as roam-
ing, wandering, or roving, we can be pretty sure that it will end up by
denying the claimed property rights of the Indians. For these words are
words which are commonly applied to buffalo, wolves and other sub-
human animals. They suggest that the relation of an Indian to land is
purely a physical relation and not a social one. They are plainly "out-
grouping" or "they" words to describe movements which most of us,
thinking of ourselves, would describe by means of such words as travel-
ing, vacationing, commuting, words that we would not apply to animals,
words distinctly human. These latter words connote purpose in move-
ment. Only when we regard a person as strange or perhaps sub-human
do we customarily impute aimless motion to him.

OUR POINT OF VIEW

Thus, if I or a friend should move from one place to another, this
physical motion would ordinarily either be described in "we" terms or
be assimilated into a more highly descriptive term. We may speak of
ourselves as transporting merchandise, or surveying, or berry-picking, or
selling life insurance, or settling the West, depending on the occasion
and purpose of the physical motion. An unfriendly Indian might dis-
regard all these nuances and describe our action in "they" terms as
trespassing or invading the Indian country. And conversely, white judges
or white settlers who do not consider Indians quite human will be apt to
disregard the purposes and occasions of Indian motion and refer to
any traveling Indian as a nomad, thereby implicitly justifying the taking
of Indian lands and homes by more civilized "settlers."

434

VOCABULARY OF PREJUDICE

We may say that each of us is likely to place himself and those to
whom he is especially attached closer to the top than to the bottom
of our value worlds. This means that "we" words will generally have
a higher value direction than "they*' words. For example, when a white
judge refers to a defendant as a Negro, Indian or savage, he is using
an "out-grouping" line of demarcation that separates himself from the
defendant. On the other hand, a judge who refers to the same defendant
as a citizen, a taxpayer, a father, a husband or a veteran, is using an
"in-grouping" delineation that includes himself and honored friends.
Perhaps the most significant effort of attorneys on opposite sides of a
case is the effort to persuade the judge or the jury or both to think
of the defendant in "we" or "they" terms. This, however, is not yet
part of what is generally taught in the law schools of our country.
Perhaps it is not yet part of what is generally understood in law schools,

HOPE FOR THE FUTURE

The technique of semantic analysis, as I have tried to present it
here, will not of itself eliminate human prejudice. But it may help us
to uncover the inarticulate value premises of ourselves and others.
Such understanding may itself lead to greater tolerance of cultural di-
versity. At the same time, it may help us to see more clearly the moral
implications of our human egocentric limitations. Having achieved such
understanding of our own limitations and distortions, we may be in a
better position to help others to see theirs. To that extent, semantic
analysis may help us to identify and eliminate prejudice, and thus aid
us, in the long run, in achieving a greater degree of tolerance and free-
dom for our society.

435

Reviews

GOVERNMENT BY JUDICIARY

It is the belief of most intelligent laymen and the doctrine of most
honest lawyers that our courts are the conservative branch of our govern-
ment, and that their vices and virtues arise from the limitations and
strength of principles which were accepted when our constitutions were
first formulated. Mr. Boudin's history of the constitutional opinions of
the Supreme Court demonstrates the fallacy of this theory in convincing
fashion. Not only the modern doctrine of judicial supremacy but many
of the substantive rules which the Supreme Court has read into the
Constitution under the authority of that doctrine are revealed as radical
and revolutionary innovations unsupported by any theories of law or
government familiar to the Founding Fathers.

Such phrases as "judicial coup d'etat" and "judicial revolution" occur
frequently in these 1,162 pages, and they are usually quoted from
sedate sources — from the dissenting opinions of conservative judges
and from the writings of conservative historians. But Mr. Boudin is not
restricted by the genteel tradition which leads legal historians to ignore
less sedate expressions of counter-revolution; and accounts of Con-
gressional overruling of Supreme Court cases, defiance of court orders
by state and national administrations, and presidential pardoning of
persons convicted under objectionable decisions bring a note of grim
realism to this history of constitutional law. One wonders, when the saga
is told, whether the Supreme Court does, after all, have the last word in
matters of government or whether a slight shift in public opinion may
call for a new show of the arms which the Constitution has allotted to
the various branches of our government. But that is another story.

A criticism of manifestations of judicial power as revolutionary will no
doubt shock both conservatives and liberals. For the former, reasoning

Published as a review of Louis B. Boudin's Government by Judiciary, in Columbia
Law Review, 1932.

436

GOVERNMENT BY JUDICIARY

from the assumptions (i) that all revolutions (except perhaps those
directed against kings) are wrong, and (2) that the Supreme Court can
do no wrong, properly infer that the Supreme Court can effect no revolu-
tion. And liberals regularly assume (i) that American law and govern-
ment is changing in the direction of greater political and economic
democracy, or, as Dean Pound puts it, is passing from a stage of individ-
ualism to a stage of increased socialization,1 and (2) that the Supreme
Court is generally opposed to greater political and economic democracy,
or socialization, from which the conclusion follows that the Supreme
Court must have opposed rather than effectuated fundamental changes in
American law and government. The fact of the matter, however, is that
in the last decades of the eighteenth century colonial and state legisla-
tion regulating wages, commodity prices, and commercial practices was
accepted and enforced by the courts as a matter of course,2 although
the need for such legislation was much less obvious than is the need for
similar legislation, now regularly held unconstitutional, today. In the
same decades, the drafters of the Constitution, recognizing that the
judiciary had within it the seeds of a new aristocracy, attempted to
make the judiciary the least powerful of three theoretically co-ordinate
branches of government, and decisively rejected the proposal to give fed-
eral judges, in a restricted form, the veto power over legislation which they
now fearlessly exercise. Today the supremacy of the judiciary in our
scheme of government is so far unquestioned that students in our law
school courses on constitutional law seldom read the Constitution, and
discussion of the constitutionality of statutes, in court rooms as well as
classrooms, proceeds from the assumption that a law is unconstitutional
unless it is "reasonable," based upon a "reasonable" classification, etc.
(to which must be added Coke's warning to King James that the "reason"
invoked is not the natural reason of kings or subjects but the artificial
reason of courts). Clearly there have been some revolutionary doings
on the American stage since the days of George Washington; and the
revolution has not been a working class revolution.
A large part of the first volume of this work is devoted to an examina-

1. Pound. "The End of Law as Developed in Legal Rules and Doctrines" (1914)
27 Harv. L. Rev. 195, 226.

2. See, for instance, Statute of New York, April 3, 1778 (i Laws of N.Y., ist sess., c.
34), "An act to regulate the wages of mechanicks and labourers, the prices of goods
and commodities, and the charges of inn holders within this State, and for other
purposes therein mentioned"; Statute of New York, February 26, 1780 (i Laws of N,Y.,
3d sess,, c, 43), "An act for a general limitation of prices and to prevent engrossing
and withholding within this State," and sources cited by Boudin, a, 401, 447.

437

THE PHILOSOPHY OF AMERICAN DEMOCRACY

tion of the purported historical precedents for the decision in Marbury
v. Madison* Although Mr. Boudin's criticisms of the English authorities
which John Marshall's modern defenders consider precedents for the
doctrine of judicial supremacy are incisive and entertaining, the hurried
reader will perhaps be satisfied with the word of Pollock, Maitland, and
Holdsworth that no such theory was ever practically maintained in
English courts. But as American legal history has been written, until
very recently, by lawyers more apt in the technique of brief-writing than
in the canons of scientific inquiry, greater importance will be attached
to our author's analysis of judicial power in early American history. If
Mr. Boudin himself writes in the manner of the advocate when he
appraises Professor Beard's contributions to constitutional history, his
fundamental criticism of Beard, Farrand, Haines, and other writers on
the subject of judicial control of legislation seems sound enough. Judicial
control, Mr. Boudin insists, cannot be studied as a lump concept. Some
power to pervert or nullify legislation all courts undoubtedly possess.
But the modern doctrine of judicial control which derives from
Marshall's opinion had never been authoritatively stated, before that
case, by any colonial or state court.

The place of Marbury v. Madison in American constitutional law has
long been a bone of contention between two schools, neither of which
escapes Mr. Boudin's trenchant criticism. According to the orthodox view,
the power of the federal courts to hold Congressional statutes uncon-
stitutional is a logical deduction from the conception o£ government
under a written constitution. As Marshall put the argument, "The con-
stitution is either a superior paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative acts, and, like other
acts, is alterable when the legislature shall please to alter it." 4 But this
is clearly a false dilemma, based upon the ambiguity of such phrases as
"superior" and "on a level with/' A constitution may be legally alterable
by ordinary legislation, and yet morally superior to such legislation and
in the nature of a permanent mandate to legislators, which they accept
with their oaths of office and obey if their hearts are pure. Such indeed
is the significance which other civilized nations have ascribed to written
(or unwritten) constitutions. It is also, as our author points out, the
significance of the United States Constitution to the Supreme Court,
when that body regards a field of legislation as "political" 6 and gives

3. i Cranch 157 (1803).

4. Id., at 177.

5. See Finkelstein, "Judicial Self -Limitation" (1924) 37 Harv. L. Rev, 338; "Further
Notes on Judicial Self -Limitation" (1925) 39 Harv. L. Rev. 221.

438

GOVERNMENT BY JUDICIARY

to statutes in that field an irrebuttable presumption of constitutionality.
Clearly there is no logical difficulty in extending that presumption to
all federal legislation. It has, in effect, been extended by the federal
courts to state legislation, so far as state constitutions are concerned, since
Calder v. Bull.® Supreme Court justices have assumed the unpleasant
duty of abandoning their personal views of the constitutionality of legis-
lation when those views are contrary to the decision of an earlier bench.
They might, without nullifying the laws of logic, extend the same
deference to legislatures and presidents as they do to the spirits of their
departed brethren.

Mr. Bouclin's critical shafts are directed with equal force against those
who speak of Marbury v. Madison as "The Great Usurpation." As against
this view Mr. Boudin points out that the Supreme Court in that case
did not declare any statute "unconstitutional" but merely refused to
exercise a jurisdiction not constitutionally granted to it. The theory that
no department of government is bound to accept as authoritative an
interpretation of its constitutional position by another department
certainly explains the decision and is not inconsistent with any of the
language of the court's opinion. Mr. Boudin shows that Wilson, Madi-
son, and the other figures marshaled by Beard and Haines as protagonists
of the doctrine of judicial supremacy never went beyond this theory.
Certainly it received practical application when Jefferson pardoned those
imprisoned under the Alien and Sedition Laws, on the ground that these
laws, which had been enforced by the Supreme Court, were unconstitu-
tional; when Jackson in similar circumstances vetoed the bill to re-charter
the United States Bank; and when orders of the federal courts were
defied on the ground of their unconstitutionality by Jefferson and
Lincoln as well as by numerous state governments. On the basis of these
and similar considerations, Mr. Boudin presents at least a prima facie
case for the view that the decision in Marbury v. Madison was neither
intended nor, for many years, understood as an affirmance of the modern
doctrine that final power to interpret the Constitution rests in the
conscience of the judiciary. At any rate that modern doctrine was not
authoritatively promulgated, despite the occurrence of several tempting
opportunities for its application, until the case of Dred Scott v. Sand-
ford,7 when for the first time the Supreme Court held unconstitutional
a federal statute which was not primarily concerned with the powers of
the judiciary.

One might have supposed that four years of slaughter, a repealing

6. 3 Dall. 386 (1798).

7. 19 How. 393 (1856).

439

THE PHILOSOPHY OF AMERICAN DEMOCRACY

statute, and three constitutional amendments would leave Dred Scott v.
Sandford a rather disreputable precedent for any constitutional doctrine.
Even the Supreme Court managed to forget about Dred Scott and the
Missouri Compromise when it celebrated a hundred years of its existence
by publishing what purported to be a complete list of the federal statutes
which it had held unconstitutional,8 a list which, as Mr. Boudin demon-
strates, contains a number of cases never decided and other cases in
which no statute was held unconstitutional. Notwithstanding this dis-
repute, the doctrine first authoritatively announced in the Dred Scott
decision survived the Civil War, nullified the Civil Rights Acts which
the Northern victory called forth, and gathered new sustenance from
the Fourteenth Amendment.

Two more steps were even then necessary, our author suggests, before
the modern conception of judicial supremacy was realized. The first was
taken in the Income Tax case,9 when the Supreme Court assumed the
unprecedented power of issuing injunctions against the execution of
congressional legislation; the second was taken in Allgeyer v. Louisiana 10
and Lochner v. New York,11 when the Court broke free of the restrictions
upon its freedom of decision which an historical interpretation of the
"due process" clauses had hitherto imposed, and turned those clauses into
a meaningless excuse for the nullification of all federal and state legis-
lation of which it disapproved.

The present work does not purport to offer an ethical appraisal of
"government by judiciary," and its author is more concerned with
historical inaccuracy and logical confusion in the decisions of the
Supreme Court than with the fate of men, women, and children deprived
by those decisions of the right to protection against the cruelties of
economic despotism. But one finds in these volumes suggestive formu-
lations of the outlines which an ethical critique of "government by
judiciary" may assume.

The principle of judicial supremacy, our author points out, means
that great constitutional problems are decided by judges "who do their
work in the seclusion of a court room, protected by a smoke-screen
of technical jargon which is utterly unintelligible to the ordinary citizen"
(2j 289). It means, also, that these problems are commonly decided en
passant in the settlement of a quarrel between private litigants and

8. 131 U.S., Appendix, ccxxv et seq.

9. Pollock v. Farmers' Loan b Trust Co., 157 U.S. 429, 15 Sup. Ct. 673 (1895), on
rehearing, 158 U.S. 601, 15 Sup. Ct 912 (1895).

10. 165 U.S. 578, 17 Sup. Ct. 427 (1897).
u. 198 U.S. 45, 25 Sup. Ct. 539 (1905).

44°

GOVERNMENT BY JUDICIARY

within the bounds of a procedure totally unsuited to the needs of govern-
ment. "It is one of the essential weaknesses of Government by Judiciary/'
our author observes, in commenting upon the storm of professional
disapproval which greeted the reversal of the first Legal Tender de-
cision,12 "that, as in all theocratic governments, based upon the sole
power to expound a sacred text, its priests cannot afford to admit error
without undermining the power of the priesthood and upsetting the
form of government in which they are the ruling caste. Error must
therefore be perpetuated, no matter what the consequences" (2, 287).
An analysis of the dependence of famous constitutional doctrines upon
accidents of political affiliation and judicial longevity leads Mr. Boudin
to the conclusion that "there is not a civilized nation in whose govern-
ment Chance plays as great a part as in that of the American nation"
(2, 532). And finally, the principle of judicial supremacy puts ultimate
power of government in the hands of the legal profession, a privileged
class which, as De Tocqueville observed a century ago, constitutes the
chief obstacle to democracy in America.

The faults of this book, despite its length, are primarily faults of
omission. The fields of state taxation, public utility rate regulation, and
state treatment of foreign and domestic corporations are left almost
totally unexplored, although the vagaries of the Supreme Court in these
pastures have left us much constitutional law unrelated to the Founding
Fathers. More pervasive an omission is Mr. Boudin's failure to sub-
stantiate his conclusions as to the role of class bias in judicial legislation
with any concrete analysis of the class origins and professional connec-
tions of our judges. Nor is Mr. Boudin always persuasive when he deplores
the judicial veto of statutes whose merits he fails to indicate. The issues
between courts and legislatures which these volumes treat are framed
in an archeological setting that scarcely does justice to the human values
that hang in the balance. It may be said, in explanation, if not in
justification, that Mr. Boudin is a lawyer, and that lawyers "are by nature
conservative, and by training used to looking backward instead of for-
ward for light and inspiration, which makes their entire cast of thought
and mode of reasoning somewhat one-sided: what was, must continue
to be; that for which there is no precedent cannot possibly be any good"
(/, 133). To lawyers, a scholarly demonstration of the revolutionary dis-
regard of precedent which has characterized the growth of judicial power
since the days of John Marshall must be a work of the greatest moment
and stimulus. Where that stimulus will lead remains to be seen. One

12. Legal Tender Cases, is Wall. 457 (1871), overruling Hepburn v. Griswold, 8
Wall. 603 (1870).

441

THE PHILOSOPHY OF AMERICAN DEMOCRACY

fears in the direction of renewed quasi-historical bar association apolo-
getics. But one may hope that, when legends of historical and logical
necessity have been buried by as meticulous an undertaker as Mr.
Boudin, the institution of government by judiciary will be discussed
on its ethical merits even by the legal profession.

THE FOLKLORE OF CAPITALISM

In this sequel to his brilliant essay on The Symbols of Government,
Thurman Arnold continues in the role of Socratic gadfly to the state of
legal learning. This is a book that will irritate all those who are not
irritated by the public speeches of leaders of the legal profession. In
forecasting the reaction that this book is likely to provoke among the
priests and pundits of the bar, one is reminded of a phrase our author
uses in describing what happens to a psychologist who tries to describe
law as he sees it: ". . . he is treated with the same scorn that an
anthropologist describing savage customs would be treated with by the
priests of the tribe he was observing," (p. 130)

This anthropological approach to legal folklore is the connecting
thread in an otherwise loosely organized book. The requirements of this
approach are simple: Don't believe anything you hear on a ritual oc-
casion. Instead of worrying about the truth or falsity of ceremonial
language, try to find out what psychological drives are satisfied by this
mode of expression and what social consequences follow from such
ceremony.

From this viewpoint we are conducted through the accepted institu-
tions of government and business. We view The Personification of
Corporation (c viii) and note how the Supreme Court "dressed huge
corporations in the clothes of simple farmers and merchants and thus
made attempts to regulate them appear as attacks on liberty and the
home." (p. 190) We observe The Effect of the Antitrust Laws in En-
couraging Large Combinations, (c. ix) We are admitted behind the
scenes of The Ritual of Corporate Reorganization (c. x) and find the
ritual to be "a combination of a municipal election, a historical pageant,
an antivice crusade, a graduate-school seminar, a judicial proceeding,
and a series of horse trades, all rolled into one — thoroughly buttered
with learning and frosted with distinguished names." (p. 230) Finally
we are shown The Benevolence of Taxation by Private Organization
(c. xi), and The Malevolence of Taxation by the Government, (c. xii)

Published as a review of Thurman Arnold's The Folklore of Capitalism in National
Lawyers Guild Quarterly, 1938.

44*

FOLKLORE OF CAPITALISM

These chapters are the meat of the book. The rest is mainly trimmings
and rumination.

Thurman Arnold is at his best when he is exposing solemn humbug.
The solemner the humbug and the buggier the solemnity, the more
fun there is for all. The prophets of gloom who gathered in the April,
1937, issue of the American Bar Association Journal to view with alarm
the dangers to our Constitution inherent in the President's court
proposals are shown going through the same motions as the physicians
gathered at the University of Paris in the seventeenth century, con-
demning the use of quinine, which was then being advanced as a
substitute for bleeding in the treatment of malaria. "Since quinine did
nothing to relieve the noxious vapors in the blood, immediate benefits
must necessarily be an 'artificial' cure or 'panacea' which left the
patient worse off than before in spite of his own temporary delusion
that he felt better . . . Certainly the temporary relief of a few sufferers
could never be worth the overthrow of medical principles to the con-
fusion of all the learning and experience of the past." (pp. 56-57)

By way of further parallel, Professor Arnold notes that "the dreaded
specter of Jesuitism hung over the use of quinine, as Communism and
Fascism hang over soil conservation and crop insurance today." (p. 57)

A moral for the political scientist is found in the fact that the popular
use of quinine in Europe was finally brought about by "a quack who
concealed it in a curious compound of irrelevant substances." For our
federal legislation on old age pensions, Mr, Arnold suggests, we have
largely to thank Dr. Townsend. For the great civic improvements of
Chicago and New York City we have very largely to thank corrupt
political machines that ignored all demands for "economy in govern-
ment" advanced by "right-thinking" people.

The success of quacks and grafters in bringing about important
governmental achievements Mr. Arnold attributes to the fact that such
persons are insufficiently acquainted with the canons of legal and
economic philosophy that show such achievements to be impossible.
According to respectable college professors, judges, presidents of bar
associations, Walter Lippmann and Dorothy Thompson, all governmental
enterprises either use the methods of private business or they do not.
If they do not, they are ipso facto unbusinesslike, wasteful, and inefficient.
If they do, that is to say if they use the methods of hiring and firing
employees, winning customers, fighting off competitors, and organizing
the day's work that are used by private business, they are hopelessly
involved in "nepotism," "graft," "red tape," "bureaucracy," and "des-
potism." Thus all constructive governmental activities are attacked by

443

THE PHILOSOPHY OF AMERICAN DEMOCRACY

respectable people as paving the road to fascism or paving the road to
communism, depending upon what kind o£ pavers are in the audience,
and if the speaker is not sure of his audience he can show with perfect
impartiality that doing nothing is the only sure way by which the
government can avoid "dictatorship by the right or left." Moreover,
respectable opinion holds that unbalanced budgets are sinful, and also
that it is equally sinful for a government to balance its budget, as a
private business does, by figuring the value of what it produces; all of
which leads to "the curious myth that permanent public improvements,
conservation of resources, utilization of idle labor, and distribution of
available goods are a burden on posterity if accomplished by an organi-
zation called 'government' which assumes public responsibility.'* (p. 311)
The principles of sound economics and sound government, in short,
require that the government should not make or do anything of value,
and that if it happens accidentally to have anything of value, such as
oil, public lands, or wave lengths in the ether, that should be given
away or leased to private parties, in order to avoid waste, bureaucracy,
and despotism. The only things that government may properly do, then,
are those things that private business does not find profitable.

Politicians, by reason of ignorance or corruptness, often violate the
principles of sound economics and sound government, Mr. Arnold
observes, and many people, torn between the sonorousness of respectable
principles and the temptation to enjoy life, compromise by giving power
to the politicians and reverence to those who recite the ceremonial
language of law and economics. From this our author infers: "Law and
economics are the formal language of institutions on parade/' (p. 138)

If we apply Mr. Arnold's theory of ceremonial language to his own
writing, we observe an intellectual, that is to say, a professional lawyer
and amateur economist, writing intellectually in a "climate of opinion"
that is predominantly anti-intellectualistic. Under the circumstances, our
author feels constrained to go through certain curious ceremonies. He
bows to the East seven times and recites: Cursed is jurisprudence, cursed
is economics, cursed is political science, cursed is philosophy, cursed is
logic, cursed is reason, cursed are ethical principles. Fortunately this
ceremony has no practical relevance to Mr. Arnold's thinking, which
is, on the whole, logical and rational, or to the ethical, economic, legal,
and political principles he enunciates. It would be unfair, therefore, to
take his professions of contempt for reason, logic, jurisprudence, ethics,
and economics seriously, and to prove that the statements in which he
gives expression to such contempt are unsound. What is important in
this volume is the author's practical observation of politics, particularly

444

FOLKLORE OF CAPITALISM

the politics of corporations and the politics of courts. This observation
has much in common with modern photography. It offers pictures of
things with which we are all familiar, taken from unfamiliar angles and
perspectives that make us see what we have never seen before.

Thus Mr. Arnold's picture of private business from the angle of politics
reveals a type of organization that levies "taxes," develops "bureaucracy"
and "graft/' and imposes "burdens on posterity" in the form of public
debts. Even the private business of being a corporation lawyer is revealed
as including "high class boon-doggling and bureaucratic red tape."
(p. 258) All this is as shocking as a photograph of an eminent general
taken from a point behind and somewhat below the tail of the horse
he rides. Equally upsetting is Mr. Arnold's snapshot of political institu-
tions from the economic angle, which shows political parties, for in-
stance, to be institutions which, for a moderate compensation from
the community, build public improvements, train government officials,
serve as public employment agencies, and administer charity. "In a
country which demands paupers' oaths and the utmost humiliation before
relief is granted to the unemployed, the greatest political machines have
owed their real strength to the fact that they took care of underprivileged
people without humiliating them." (p. 369)

Implicit in the author's transposition of economic and political cate-
gories is the view that the furnishing of life's material necessities is as
much a public affair as the furnishing of police protection or water,
that government is a kind of business and that business is a form of
government, that both represent a public organization of human effort
to satisfy human wants, that when the form of corporate government
becomes destructive of the purpose for which it was established, the
purpose of increasing production, it is the right of the people to alter
or abolish it and to put in its place a democratic organization of industry.
This, it may be said, is the essence of socialism, as expounded in this
country for many years by Norman Thomas and others for whom Mr.
Arnold expresses mingled pity and contempt. But it is socialism that has
forgotten its Hegelian ancestry, grown up on a Wyoming ranch, served
an apprenticeship in the Wyoming legislature, and come to maturity
(almost) in philosophical reflection on the curious fallacies of capitalism's
legal and economic defenders.

A reviewer is generally expected to list the errors in a book, in order
to prove that he has read it. This reviewer therefore duly deplores the
fact that the author states, without any supporting evidence, that
Rousseau depicted a social contract as a historical event (p. 27), that
Hitler "put everyone to work" (p. 41), that socialists distrust "any form

445

THE PHILOSOPHY OF AMERICAN DEMOCRACY

of organized control" (p. 70), that persons in control of business and
government do not use "the literature of economics and law" in their
daily operations (p. 84), that the principle of relativity, in physics, is
the doctrine that words like "slow" and "fast," or "up" and "down,"
are relative to a context (p. 167), that "Hitler subscribed to Socialism"
(p. 341), and that the sacrifice of mechanical inventions on religious
altars is happily a thing of the past (p. 378). One feels, however, that
the application of canons of truth and falsity to the work of a literary
cartoonist with a social conscience is as irrelevant as it would be in a
review of Aristophanes' Frogs or Swift's Gulliver's Travels.

What Thurman Arnold has done that is of permanent significance in
the currents of legal learning is to extend the insights of sociological
and realistic jurisprudence to the hinterland beyond court decisions.
The gap between what courts do and what courts say, between law-in-
books and law-in-action, has been explored by Holmes, Pound, M. R.
Cohen, Moore, Cook, Llewellyn, Hale, Yntema, Oliphant, Jerome Frank,
and other pioneers in special fields of law, for over half a century.
Thurman Arnold presents the thesis that this gap between action and
talk is a segment of a larger separation between what legislators, poli-
ticians, lawyers, and businessmen do and what they say on ceremonial
occasions. The methods of realistic analysis are used to show the
irrelevance of individualist apologetics to the contemporary life of
"private" corporations, the irrelevance of traditional economic theory
to the successes and failures of business enterprise, the irrelevance of
"budget-balancing" to the actual process of building or depleting the
public wealth, the irrelevance of our constitutional theology to the
actual functioning of courts and legislatures and executive officers on
the political scene.

To such a demonstration divergent responses are possible. What may
be called the "right wing" of the realist school concludes that judges,
statesmen, and businessmen act more wisely than they speak: if they
stray from the principles they profess that is because principle is unim-
portant. Indeed many who espouse this view argue that "rules" and
"principles" are only noises, without practical significance, and hold that
any criticism, in terms of "rules" and "principles," of the decisions of
judges and statesmen must be "disingenuous." Thus realism becomes a
denial of ethics and a justification of whatever happens to exist,

On the other hand, the realist "left wing" uses the technique of
realism to strip from legal decisions, economic institutions, and political
practices the false coverings of cosmic respectability that shield them
from moral scrutiny. These realists, instead of repudiating all princi-

446

THE GOOD SOCIETY

pies, on principle, seek to discriminate between those principles that
support outworn institutions and those that have in the past been
honored but unobserved and remain to serve as the framework of a
new society. The fact that an accepted principle is not followed under
certain circumstances, instead of being regarded as proof of the un-
importance of principle, is looked upon rather as evidence of a hypocrisy
or class bias that requires further diagnosis and therapy.

Thurman Arnold, in this volume, fails to face the basic ethical issue
between realism as a defense of the status quo and realism as a tech-
nique of social criticism, arguing in extenuation that it is unnecessary to
think systematically about these matters because legal and economic
theory has no relation to reality.

The logical inadequacies of this conclusion are obvious. To identify
economic theory with a particular laissez faire theory that is repudiated
by most intelligent students of economics today, and to identify legal
theory, as does our author, with a set of doctrines that are rapidly
being undermined, is to throw out the baby with the dirty water.
From an anthropological viewpoint we may say that Mr. Arnold's de-
nunciation of legal and economic science is a ceremonial symbol that
the author's thinking has petered out at the point where a consistent
realist must either accept the reality of an ethical ideal, in terms of which
one can criticize social institutions, or else must assign all ethical prin-
ciples to the limbo of unreality and devote oneself to the defense of
things as they are. Perhaps Thurman Arnold will have made this choice
when he writes a sequel to The Folklore of Capitalism.

AN INQUIRY INTO THE PRINCIPLES OF THE
GOOD SOCIETY

Mr. Lippmann, in attempting to formulate a liberal philosophy of law
and politics, commands the attention of liberal lawyers. Many today are
wondering whether a liberal philosophy of government can be formu-
lated which will be free from the mists of uncertainty and confusion
that have sent one-time liberals scurrying by the thousands to embrace
one or another of the political and religious orthodoxies that promise
a clear and complete vision of the future, the present, and the past,
of right and wrong, of human destiny. But those who expect to
find clarity of philosophic vision in Mr. Lippmann's latest work will
be disappointed. The Good Society contains some of the most muddled

Published as a review of Walter Lippmann's An Inquiry into the Principles of the
Good Society in Columbia Law Review, 1938.

447

THE PHILOSOPHY OF AMERICAN DEMOCRACY

reasoning that this reviewer has been privileged to read since the pub-
lication of A Preface to Morals.

Mr. Lippmann's latest volume is intended primarily as a philosophical
criticism of something that the author variously refers to as the
"providential," "totalitarian," or "corporative" state, "directed society/'
"planned economy/' "collectivism/' "absolutism/' "bureaucracy/' or the
"New Deal." In more elegant terms the object of Mr. Lippmann's criti-
cal concern is described as "the cult of the state as provider and savior"
(p. 37), as "the heresies of absolutism, authority and the dominion of
men by men/' (p. 21) and as "the choice of Satan, offering to sell
men the kingdom of the world for their immortal souls" (p. 21). The
alternative to these horrors which Mr. Lippmann recommends is "lib-
eralism," which is identified with belief in "the increasing uniformity of
equal laws" (p. 318), and "the supremacy of law over men" (p. 342).

Our author starts bravely enough by denouncing the evils of dic-
tatorship, bureaucracy, and war, all of which Mr. Lippmann ascribes to
"collectivism." It is pertinent to remark that most of Mr. Lippmann's
arguments on this subject proceed from historically false premises.
When Mr. Lippmann tells us, for instance, "Collectivist regimes are
always profoundly irreligious" (p. 382), he simply reveals his ignorance
of the history of religion. Certainly no history of religion can be written
without affording a prominent place to the collectivist communities of
the early Christians; to such examples of primitive collectivism as the
Aztec and Pueblo Indian communities; to the Jesuit, Franciscan, and
Benedictine orders; and to the communities of the early Mormons and
various Protestant sects in the United States. Again, when Mr. Lippmann
tells us that "all the known examples of collectivism have had their
origin in war or have as their objective the preparation for war"
(p, 91), he reveals his profound ignorance of such collectivist move-
ments as those of Denmark, Sweden, and Norway. But let us grant
that the evils of dictatorship, bureaucracy, and war do exist in certain
collectivist societies. The conclusion that eliminating collectivism will
free us from these evils remains a logical non sequitur. For Mr, Lipp-
mann fails to show that non-collectivist societies are or can be free from
dictatorship, bureaucracy, and war. In fact, the period of liberalism
which he glorifies — from the year 1776, when Adarn Smith's Wealth of
Nations appeared, until 1870, when, according to Mr. Lippmann, "free-
dom ceased to be the polestar of the human mind" (p. 47) — was a
period which, according to most historians, produced a bumper crop
of dictatorships, bureaucracies, and wars,

Mr. Lippmann traces the evils of our age to the "gigantic heresy

448

THE GOOD SOCIETY

of an apostate generation" (p. 6), which he finds in the "dominant
dogma" that "human ends must be attained by the coercive direction
of the life and labor of the people" (p. xv). The ideal of a "directed
society," Mr. Lippmann warns us, springs from the modern notion
that government can be scientific. But in fact affairs of state are too
complicated to be treated scientifically, and officials of government are
humanly frail. Any attempt to plan the economy of a complex society
(except in war time) "would require a comprehensive understanding
of the life and labor and the purposes of hundreds of millions of per-
sons, the gift of prophesying their behavior and omnipotence to control
it. These faculties no man has ever possessed" (p. 364).

All this is the familiar argument of modern anarchists since Bakunin.
If the root of all evil is "the coercive direction of the life and labor of
the people," that is to say government and laws, it follows that we
ought to get rid of governments and laws as quickly as possible. If
the regulation of economic affairs requires an omniscience that no gov-
ernmental official can attain, does the regulation of non-economic affairs
require less knowledge?

At times Mr. Lippmann seems almost to accept the implications of
his anarchism. In appealing for a "recognition that there is in each
man a final essence — that is to say an immortal soul — which only God
can judge" (p. 378), Mr. Lippmann in effect denies the jurisdiction of
all civil courts, just as he denies the authority of all lay legislatures
when he denounces as "heretical" the "coercive direction of the life
and labor of the people." Fortunately Mr. Lippmann has sufficient dis-
trust for the logic of his argument to recognize, whenever he forgets
that he is a philosopher and deals with a concrete problem, that we need
still more laws and still more social services, that we need government
in fields where government never grew, that modern social problems de-
mand new forms of social and legal control. Indeed Mr. Lippmann, in
his more lucid passages, points out that the fundamental error of laissez
faire was the failure to recognize that "property, contracts, corporations,
as well as governments, electorates and courts, are creatures of law, and
have no existence except as bundles of enforceable rights and duties"
(p. 244). If the economic weapons of businessmen are rights conferred
by law, the laws that confer these rights must be criticized and revised
from time to time. In these passages Mr. Lippmann charts an "agenda of
liberalism" that might be mistaken for an outline of the New Deal.
The agenda includes conservation of land and natural resources (p.
213), constructive public works (p. 226), "monetary reform" and "mone-
tary management" (220), social control of banking (219), more stringent

449

THE PHILOSOPHY OF AMERICAN DEMOCRACY

accountability of corporate promoters and directors (215), social in-
surance against risks caused by technological change (226), governmental
action to eliminate monopolies and to protect consumers from dishonest
or unfair marketing practices (221), "greater equalization of incomes"
(227), "the use of the taxing power ... in order to pump the surplus
funds of the rich out of the ordinary capital market and into public
investments" (229), and even the expropriation of "unnecessary payments
of unearned increments" (80).

This positive program of governmental activity may seem to the
reader to be logically inconsistent with the view that governments are
too ignorant and corrupt to be permitted to impose coercive authority
upon men's lives and labors. Mr. Lippmann, however, sees no incon-
sistencies. He is opposed to "bureaucracy" and in favor of "the su-
premacy of law over men/' But he does not tell us in what bureau
of government, federal, state, or municipal, we shall find a bureaucrat
who does not believe that he is enforcing a law superior to himself.
While Mr. Lippmann is opposed to "commands" of governments, and
to "coercion," he is in favor of law and order, provided that the laws
are "uniform'* and confer "reciprocal rights and duties." Unfortunately
Mr. Lippmann does not tell us where we shall find a law that is not
uniform for all the cases to which it applies or a law that does not
confer reciprocal rights and duties.

The divergence between Mr. Lippmann's philosophical views on
the corruption of governmental flesh and his political views on the
need for substantial social reforms is at once a measure of Mr. Lipp-
mann's poverty as a philosopher and of his remarkable gifts as a poli-
tician. One who can speak with Mr. Lippmann's passionate conviction
on both sides of any question, with no sense of logical sin, should
have a long and brilliant political career. It is a pity that such a gifted
statesman should waste his time at philosophy.

Perhaps the root of most of Mr. Lippmann's philosophical difficulties
is the habit which Marx noted in his teacher, Hegel, of standing the
world on its head. The cause of modern concentrations of control,
according to our author, "is to be found not in the technic of production
but in the law" (p. 13). About the year 1870, Mr. Lippmann tells us,
mankind was suddenly stricken with the "heresy" of collectivism, which
brought about concentrated corporate power in the United States, Com-
munism in the Soviet Union, and Fascism in Italy and Germany, No-
where does Mr. Lippmann exhibit any recognition of the fact that
modern technology calls into being social controls which are irrelevant to
a simpler society of self-sufficient households. The man with his hand

45°

THE GOOD SOCIETY

on a dynamo switch controls the lives of ten thousand people, not be-
cause he has Satanic heresies or Lippmannesque intuitions of self-evident
truth, but only because that is the nature of dynamos and electric trans-
mission lines. Mr. Lippmann is so much concerned over the meaningless
question of whether the man with his hand on the switch should or
should not have coercive power over his fellow-citizens that he has
no time to consider the more pertinent question of whether it is best
that the man with his hand on the switch shall take orders from a
corporate board of directors or from a municipal legislature or from
a labor union or from an army corps or from a totalitarian party.

As, in Mr. Lippmann's world, technology is an irrelevant accident and
the source of all evil is to be found in certain intellectual aberrations
and heresies that periodically afflict mankind, so in Mr. Lippmann's
theory of reform, labor unions, political parties, pressure groups, play
no part. All that is needed to reform society is "a profound and universal
intuition of the human destiny which, to all who have it, is invincible
because it is self-evident" (p. 372). If we are disturbed by any doubts as
to the content of this intuition which is at once "profound," "universal,"
"invincible," and "self-evident," they are quickly set at rest. "The self-
evident truth which makes men invincible is that inalienably they
are inviolable persons" (p. 375). Here, then, is the final metaphysical
truth that will do away with Communism, Fascism, and the New Deal.

It is pertinent to note that if Mr. Lippmann's metaphysical intuition
were true, and if men, by reason of their "essential manhood" always
opposed their "inexhaustible and irresistible" energies to governmental
"coercion" (p. 353), Communism, Fascism, and the New Deal could not
exist, and if Mr. Lippmann's intuition was, as he insists, "self-evident"
and "universal," there would be none to deny his philosophy. But alas,
Communism, Fascism, and the New Deal, not to mention bureaucracy,
collectivism, and economic planning, continue to exist even though they
are impossible under Mr. Lippmann's metaphysics. And so Mr. Lipp-
mann does what many eminent metaphysicians have done before him,
as Bertrand Russell once pointedly observed. He "first invents a false
theory as to the nature of things, and then deduces that wicked actions
are those which show that his theory is false." l

Respect for the ideal of liberalism impels this reviewer to state that
Mr, Lippmann is mistaken in believing that what separates liberalism
from Fascism and other collectivisms is the liberal's belief in a "human
inviolability" that is superior to the democratic judgments of popular
majorities. The fact is that Mussolini's chief legal philosopher, Giorgio

i. Russell, Sceptical Essays (1928), p. 91.

451

THE PHILOSOPHY OF AMERICAN DEMOCRACY

del Vecchio, found no difficulty in erecting his Fascist apologetic upon
the neo-Kantian basis of "human inviolability" with its corollary of
opposition to materialism. On the other hand, it was our own New
England liberal, Mr. Justice Holmes, who, in criticizing Del Vecchio's
legal philosophy, and inferentially Mr. Lippmann's, pointed out that any
political doctrine which makes an individual inviolable, and superior to
the wise or foolish decisions of his fellow-citizens, would make it im-
possible for a democratic society to defend itself from its enemies.2

I suspect that the tough-minded liberal faith that Holmes defended
— a liberalism that is honest because it is based upon a faith in democ-
racy— will probably survive the pontifical curses of Mr. Lippmann.

THE ALIEN AND THE ASIATIC IN AMERICAN LAW

This treatise on the two chief outcasts of our constitutional system, the
alien and the Asiatic, is a timely probing of the depth of our American
democracy. Its list of legal atrocities constitutionally committed upon
Americans or would-be Americans who did not have the foresight to be
born in the proper places has all the macabre fascination of old ethnology
books which recount the horrors found by missionaries among benighted
peoples lacking properly supported agencies of civilization and true
religion.

Today, more than ever, such a study has meaning even for native-born
Americans of whitest ancestry. For none of us can be sure of rights
which are denied to the meanest member of society. And since the
Supreme Court in Korematsu v. United States 1 has held that American
citizens of a feared or hated stock may be taken from their homes and
put behind barbed wire without notice of charges, indictment, jury
trial, or other opportunity to be heard in self-defense, all of our civil
rights are subject to forfeiture if nations or races from which any of us
are descended become feared or hated.

Indeed, the implications of the Korematsu case go even further. For,
apart from the fact that a number of American citizens of the same racial
strain as Korematsu refused to take a test oath of allegiance after im-
prisonment, the only ground advanced in the Supreme Court opinion

2. Holmes, Collected Legal Papers (1920), p. 304.
i. 323 U,S. 214 (1944).

Published as a review of Milton R. Konvitz's The Alien and the Asiatic in American
Law in Yale Law Journal, 1947. Felix Cohen himself had planned a detailed paper on
"Judicial Anthropology" in which basic assumptions on race and culture implicit in
some legal decisions would be analyzed on a case-by-case basis,

452

THE ALIEN IN AMERICAN LAW

for upholding the domestic deportation of American citizens without
trial or hearing was the ethnological ignorance of the Court as to the
truth or falsity of the theories upon which the military acted.

The language of the Court, "we cannot reject as unfounded. . . .
We cannot say that the war-making branches of the Government did not
have grounds for believing. ... we could not reject the finding . . . ,"
taken in conjunction with the anthropological opinions of the Com-
manding General concerning "ties of race, culture, custom and religion,"
leaves all our civil rights dependent upon race theories of generals and
upon the extent to which judges are equipped to identify decayed
anthropological doctrines.

The extent to which discriminations based on race and alienage have
been written into our federal and state laws, particularly in the years
since the first World War, is not generally appreciated. So far as I know,
the only comprehensive effort to trace the scope of such discrimination
prior to Professor Konvitz's work was made under Nazi auspices in an
effort to prove that Americans were doing circumspectly or hypocritically
what the German Government did more honestly.2

The list that Professor Konvitz gives us of discriminations against
aliens and Asiatics that have been upheld by the courts is impressive and
dismaying. About a hundred Supreme Court cases bearing on the
constitutionality of such discriminations are patiently analyzed. The
cases cover exclusion and deportation of persons considered to be aliens,
disallowance of citizenship, denaturalization, exclusion from various pro-
fessions and occupations, disabilities with respect to landholding, segre-
gation, miscegenation, registration, and internment. What stands out
in a review o£ these cases is the consistency with which the Supreme
Court has followed the pseudo-science of the "superior Aryan race" in-
vented by the precursors of Fascism, Gobineau and Houston Chamber-
lain. And this, as Professor Konvitz demonstrates, has not been merely
a matter of yielding to popular waves of hysteria that culminate, from
time to time, in legislation. Rather, the Court has repeatedly pressed the
claims of racist theory beyond any existing legislative expression. Al-
though Congress put a stop to the naturalization of Chinese in 1882,
it was the Supreme Court, speaking through Mr. Justice Sutherland,
that in 1922 put a stop to the naturalization of other Asiatics.3 And when

2. A chapter of this dissertation by Heinrich Krieger on American Racial Law
appears under the title "Principles of the Indian Law and the Act of June 18, 1934,"
5 Geo. Wash. L. Rev. 279 (1935).

$, Ozawa v. United States, 260 U.S. 178 (1922); United States v. Thind, 261 U.S.
204 (19^3),

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

it put a stop to the naturalization of Asiatics it provided itself with a
bootstrap to uphold discriminatory land laws, a year later. "It is ob-
vious that one who is not a citizen and cannot become one lacks an
interest in, and the power to effectually work for the welfare of, the state,
and, so lacking, the state may rightfully deny him the right to own
and lease real estate within its boundaries." 4

Thus we denied the most basic of human rights to half the world's
population, discredited western liberalism in Asia, and stirred up resent-
ments which finally culminated in war. It became a simple matter there-
after to argue that descendants of human beings so mistreated by us
must hate us, that "The very fact that no sabotage has taken place to
date is a disturbing and confirming indication that such action will be
taken," 5 and that as a matter of self-preservation we must put behind
barbed wire the children of parents whom we wronged a generation ago.
This pattern, based on fear or hatred of racial groups we have injured,
is not entirely a new pattern in American constitutional law. It began
in our relations with Indians — about which Professor Konvitz is sub-
stantially silent, despite the claims of the blurb writer on the back cover.
It took new roots when Congress decided in 1883 that the best way to
stop violence against Chinese immigrants was to bar them from our
land and that the best way to prevent violation of their rights as citizens
was to prevent those who were already here from acquiring citizenship.
But the real impetus to racial intolerance came in the wake of the first
World War, in accordance with a Chinese proverb that the first result
of a war is for the adversaries to adopt each other's vices. It was in that
atmosphere that we wrote on our statute books in 1924 that Germans
are four times as worthy of admission to our country as Hungarians, that
Japanese are not worth admitting at all, etc. And it was in this atmos-
phere that Justice Sutherland, in 1922 and 1923, wrote the historic
opinions of the Supreme Court which put a stop to the naturalization
of Japanese,6 Hindus, and other Asiatics, on the basis of a super-Aryan
myth that excludes even the original Aryans of India,7 not to mention
children born in Bethlehem and other towns of Asia Minor.8

With that characteristic love of buck-passing which is so fundamental
a part of the judicial process the ethnic views of the Court in 1923

4. Terrace v. Thompson, 263 U.S. 197, 220 (1923)

5. General De Witt's words, quoted in Korematsu v. United States, 323 U,S. 314,

6. Ozawa v. United States, 260 U.S. 178 (1922).

7. United States v, Thind, 261 U.S. 204 (1923).

8. In re Aimed Hassan, 48 F. Supp. 843 (1942),

454

THE ALIEN IN AMERICAN LAW

were ascribed to the Founding Fathers, who were not present to deny the
charge. The draftsmen of the 1790 Naturalization Act, we are told, had
thought of white men as blue-eyed and light complexioned and while
the word "white" might possibly be stretched to cover the "dark-eyed,
swarthy people of Alpine and Mediterranean stock," 9 it could not be
stretched to include Caucasians of darker hue. One wonders: Is this a
nation or a beauty contest that Justice Sutherland is talking about?

So far as I know, the annotators have never gone to work on the
Declaration of Independence. But when they do, they will find in
Professor Konvitz's book a good many potential footnotes to the phrase
about all men being created equal: for example, that Chinese immigrants
are unable "to make any change in their habits or modes of living"; 10
that English aliens cannot be trusted to operate pool rooms in a law-
abiding manner; n and that the Anglo-Saxon names of our earliest
legislators are an index of their racial origin and of an intent to legislate
for "their kind." 12 These are cardinal dogmas of a judicial anthropology
that will one day have the same respect from thinking men that is now
paid to the judicial economics of earlier decades.

The case materials and the legislation with which Professor Konvitz
deals are dissected with a deft scalpel that uncovers the unspoken
premises and hidden consequences of statutes and decisions. Relevant
legal and sociological literature is brought to bear on the issues analyzed.
Frequent reference to arguments in briefs before the Court illuminates
the scope of decisions. Apt quotations from biographies of the justices
help to clarify judicial motivations. The volume is thus an excellent
example of the realistic jurisprudence that has now moved from the
stage of manifestoes and polemics to the stage of constructive work-
manship.

If there are weak spots in the volume, it is only fair to say that, by
and large, they are not original with the author. One finds, for instance,
the common notion that propositions are either positive or negative and
that the latter are harder to prove than the former (p. 223) — which over-
looks the ever-present possibility of finding positive synonyms for nega-
tive terms and vice versa. There is the unguarded statement that im-
migrants do not furnish their share of leaders of liberal and radical
thought (p. 36), which is no truer than the view that immigrants are
as a class liberal or radical. The statement that Arizona Indians may

9. United States v. Thind, 261 U.S. 204, 213 (1923).

10. Chinese Exclusion Case, 130 U.S. 581, 595 (1889).
H, Clark v, Deckebach, 274 U.S. 392 (1927).

12, United States v. Thind, 261 U.S. 204, 213 (1923).

455

THE PHILOSOPHY OF AMERICAN DEMOCRACY

not marry whites (p. 232) has not been true since ig42.13 In Arizona,
Indians are the only people who can marry whom they please. But
these, like the typographical errors that mar some footnote citations,
are all trivial defects in a work that contributes so largely to the under-
standing of our Constitution and our national ethics.

One's chief regret is that the volume is too short. The author's
sympathy for the downtrodden leads him to terminate his analysis when
he finds an injury done to an alien here which we should resent if
it were done to an American abroad. But this appeal to justice is gen-
erally unconvincing to those — and they are not all "corrupt politicians"
(p. 157) — who think a nation's judges and law-makers have enough to
do in protecting their own citizens. What would carry more weight in
such quarters — which are highly and properly influential — would be a
demonstration that while discrimination seldom destroys an outcast
group, it very often corrupts the group that practices it and comes to
rely upon it.

We have developed a civilized criminal law not by idealizing burglars,
but by recognizing that the welfare of each of us depends upon the
existence of legal procedures that accord even to burglars certain basic
constitutional rights. Perhaps if the defenders of our civil liberties made
less effort to arouse sympathy for cranks and Communists whose rights
have been invaded and concentrated more on the harm that is done to
the public health and safety when certain necessary apertures in the social
anatomy are sealed, they would find more receptive audiences. Certainly
the right to advocate unpopular ideas is of interest to very few, but the
right to hear and consider such ideas put forward by others is of interest
to all of us.

So, too, I think that a critique of our treatment of Asiatics and aliens,
as of Negroes, Indians, Jews, and other under-privileged minorities,
would be far more effective if, instead of concentrating on the effects of
persecution upon the lives and feelings of the victims, a stronger analysis
were made of the effects of such persecution in weakening our democ-
racy, threatening our peace and security, imposing upon our government
new burdens of bureaucracy, and undermining the national economy. It
seems to me that the critique which Professor Konvitz gives us would
be vastly strengthened if he went on to analyze the injury done to
society when we cannot hire a nurse to tend a sick child because she has
not yet been naturalized, or cannot be naturalized because of her
ancestry; when we cannot buy fresh and wholesome vegetables at reason-
able prices because good farmers are driven off the soil for racial reasons;

13. Ariz. Laws 1942, c. 12, § x; Ariz. Code Ann. §63-107 (Supp, 1945),

456

TO SECURE THESE RIGHTS

when we find ourselves involved in war situations because state legis-
latures are reckless in their insults to foreign nationals without ballots;
when we are deprived of the aid of great scientists and much-needed
technicians by a gerrymandered immigration law which makes the ac-
ceptibility of pilgrims to these shores dependent upon their ancestry
rather than upon their capacities to contribute to American life; or when
our intellectual life and the development of a more mature labor move-
ment are dampened by threats of deportation and by the growth of a
"thought-police" bureaucracy that shows no signs of dissolving as our
alien population dwindles.

It is well that one who appraises a course of decisions should make
explicit the ethical assumptions from which he proceeds. This Professor
Konvitz does with candor. On the title page of the volume appears a
provision of the Mosaic law: "But the stranger that dwelleth with you
shall be unto you as one born among you, and thou shalt love him as
thyself." 14 Judged by that civilized standard we have fallen a long way
in the last quarter century of our national life. Yet, for the sake of the
record, it should be noted that this was a statutory standard to which
even the judges and administrators of the nation to whom the Mosaic
law was given often failed to adhere. There is not much to choose
between the "chosen people" theories of Ezra in Ezra 10:16-17 and of
Justice Sutherland in 260 U.S. 178 and 261 U.S. 204.

Still, the commandment of Leviticus 19:33-34 retains its vitality and
its capacity to inspire human effort after more than 20 centuries. Per-
haps the Declaration of Independence will, too.

TO SECURE THESE RIGHTS: THE REPORT OF THE
PRESIDENT'S COMMITTEE ON CIVIL RIGHTS

The President's Committee has received a well-deserved accolade of
praise from the civilized, and of brickbats from the blood-fanatics, for
its report on civil rights in America, of which more than a million
copies have been reprinted. So far as I know, however, none of the
commentators on this important document has noted that it is not
the first of its field. Some 78 years before the landing of the Pilgrims,
the first comprehensive report on the civil rights of Americans was com-
pleted. In the concluding paragraphs of his report, dated December 8,
1542, Fra Bartholomew de las Casas expressed some doubt as to "whether
14. Leviticus 19:33-34-

Published as a review of the Report of the President's Committee on Civil Rights
in Y&le Law Journal f 1948. Appeared also in substantially the same form in Etc.x 1948,

457

THE PHILOSOPHY OF AMERICAN DEMOCRACY

it could be worse to give the Indians into the charge of the devils of
hell than to the Christians of the Indies." Unfortunately the world's
mightiest government, in 1542, was not mighty enough to correct the
abuses that Las Casas reported. A number of high-minded statutes out-
lawing various current forms of racial discrimination and oppression
were promulgated, but they were not enforced. And because Spain, in
its American dominions, could not assure equal justice to its people, the
lands it ruled were blighted, and its imperial power slowly crumbled
into the dust.

The President's Committee on Civil Rights follows the report of Las
Casas to King Philip in its basic conception that a man has a right to
liberty and to equal justice before the law, not because of his skin color,
religion, or ancestry, but just because he is human. To be human, as both
reports recognize, is to have potentialities of achievement and of con-
tribution to the common good or the glory of God (depending upon
one's language), and these potentialities are poisoned by intolerance.
The manifestations of racial and religious intolerance which both these
great documents recount are too clear to justify skepticism and too vivid
to warrant retelling in poorer language. The documents speak for them-
selves. The question remains: What do we who read them do?

When Las Casas made his report, he may have had some doubt as to
the reception that would be accorded by the King of Spain to his
devastating criticism of Spanish lawlessness and racial bigotry in the
New World. At any rate, the preface to his Briefest Report on the De-
struction of the Indies expressly recognizes that, since the King can do
no wrong, responsibility for the excesses reported must lie elsewhere:

As divine Providence has ordained that in this world, for its
government, and for the common utility of the human race, King-
doms and Countries should be constituted in which are Kings almost
fathers and pastors, (as Homer calls them), they being consequently
the most noble, and most generous members of the Republics, there
neither is nor can be reasonable doubt as to the rectitude of their
royal hearts. If any defect, wrong, and evil is suffered, there can be
no other cause than that the Kings are ignorant of it; for if such
were manifested to them, they would extirpate them with supreme
industry and watchful diligence.1

A similar assumption is made by the President's Committee on Civil
Rights. The distinguished members of this committee are unwilling to

i. MacNutt, Bartholomew De Las Casas, His Life, His Apostolate and His Writings
(1909), p. 31**

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TO SECURE THESE RIGHTS

assume that the President who appointed them, and to whom they
report, can be responsible for the violations of civil rights that their
report recounts. Prime responsibility for these conditions and for their
cure is accordingly ascribed, by what lawyers call an "irrebuttable pre-
sumption/' to the Congress of the United States, which did not appoint
the Committee and which has few defenders among the readers of such
reports. This may or may not be good politics, but is certainly not good
law or good science.

Racial discrimination in the armed forces, for example, is roundly and
justly censured by the President's Committee (pp. 40-47). "The Marine
Corps has 7,798 officers — all white," the Committee reports, with the
effective pictorial representations that make this document almost unique
among government reports. And after a shocking list of discriminations
in the armed forces, what does the President's Committee do? It
recommends "the enactment by Congress of legislation, followed by
appropriate administrative action, to end immediately all discrimination
and segregation based on race, color, creed, or national origin, in the
organization and activities of all branches of the Armed Services" (p.
162). The fact remains that the President, as Commander-in-Chief of
our armed forces, could abolish such discrimination and segregation by
Executive order tomorrow. Congress has never imposed discrimination or
segregation on the armed services by any statute, and there is no reason
in the world why the President, in whose hands Congress has placed
such matters, should continue to sanction discriminatory practices in the
armed services until Congress gets around to passing legislation on the
subject. Under these circumstances, the Committee's recommendation
that "appropriate administrative action," which is possible now, should
follow legislation, which is neither possible nor necessary, sounds sus-
piciously like a bit of election-year buck-passing.

The same may be said of discrimination and segregation in the school,
hospital, and recreation systems of the District of Columbia, which rest
not upon any law but upon the decisions of the President and his
subordinate executive officers. Segregation has been abolished in golf
courses, tennis courts, swimming pools, and theaters operated in the
District of Columbia by the Department of the Interior, and segregation
is insisted upon in similar facilities operated by the District Commission-
ers, not because of anything in the law but because different subordinates
of the same President have different ideas about racism. Segregation
in the public institutions of the nation's capital could be abolished
tomorrow by Executive order or by a series of letters or telephone calls
from the President to various of his subordinates. Yet the President's

459

THE PHILOSOPHY OF AMERICAN DEMOCRACY

Committee sends its readers barking up a tree without possums when
it recommends: "The enactment by Congress of a law stating that dis-
crimination and segregation, based on race, color, creed, or national
origin, in the rendering of all public services by the national government
is contrary to public policy." (p. 169) Does anyone really think that the
President is now deterred from abolishing discrimination in activities
of the Federal Government by lack of such a statement? Would such a
statement by Congress today add substantially to the statement on the
question of human equality which Congress made on July 4, 1776?

So it is with several other subjects on which, after a learned, powerful,
and devastating account of current evils, the Committee ends up with
perfectly irrelevant legal recommendations. Why in the world the Presi-
dent's Committee should ask Congress to pass a law to eliminate race
discrimination in the Canal Zone (p. 172), when the President himself
could do this tomorrow by a phone call to the Military Governor, has
never been explained. There is certainly no reason for continued mili-
tary government in Guam and Samoa, but this again is the result of
a Presidential decision, not a Congressional decision. Only the Com-
mittee's irrebuttable presumption that the President can do no wrong
prevents it from noting that, however desirable legislation on these
subjects may be, presidential action under existing law would be more
effective and a great deal faster. Perhaps the Committee was actually
unaware of the scope of Executive power and responsibility in these
matters. Perhaps the Committee merely succumbed to the popular Amer-
ican battlecry, "There ought to be a law," which so often blinds us to
the possibility or the importance of enforcing the laws we already have.
Perhaps the Committee was merely being polite in not blaming the
President who appointed it for the evils that it uncovered. Perhaps some
of the members of the Committee really believe that Kings and Presidents
can do no wrong. But whatever the explanation may be, the Report will
send a good many letters to the wrong address.

The proper address for appeals to eliminate racial discrimination and
other infringements of civil liberties in the armed services or the civil
service of the United States, in the administration of outlying possessions
now under military government, in the public services of the District of
Columbia, or in federal housing projects or other service activities of
the Federal Government is 1600 Pennsylvania Avenue. When action that
may be taken in the White House has been taken, the recommendations
that proceed from the White House to Capitol Hill for legislation on
the protection of civil rights will have both a more limited scope and a
greater moral force.

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TO SECURE THESE RIGHTS

Even in those large fields where Executive action could not by itself
wholly eliminate the evils which the President's Committee reports, there
are available lines of Executive action which would bring us a good deal
nearer to the goals which the Committee so persuasively proclaims. For
example, Section 2 of the Fourteenth Amendment to the Federal Con-
stitution expressly declares that when the right to vote is denied (except
for commission of a crime) to any portion of the adult population of any
state the representation of that state in Congress shall be reduced
proportionately. If this provision of the Constitution were enforced,
the poll tax states would lose a large part of their Congressional
representation, which is at present sizeable enough to kill most of the
progressive legislation that the President's Committee recommends. But
it is in the President, and in his subordinates in the Census Bureau and
the Department of Commerce, that responsibility for submitting the
population basis for Congressional reapportionment is vested. And no
President of the United States, apparently, has ever attempted to enforce
this provision of the Fourteenth Amendment. It may very well be that, if
the President acted in the manner prescribed by the law of the land,
Congress would refuse to accept the reapportionment he would be bound
to formulate. But at least the first necessary step would have been taken
to rectify one of the most glaring of our violations of the Federal Con-
stitution, and the responsibility for not taking the final step would then
be clearly fixed upon Congressmen unwilling to accept the Constitution
as the supreme law of the land.

There is no field of legislation in which racial and religious intolerance
has played a larger role than in our immigration laws. Anti-Catholic,
anti-Semitic, and anti-Oriental prejudices are the dominant forces that
have molded our immigration laws for some decades. Yet even here there
are many forms of discrimination that are primarily Executive in origin,
that could be eliminated by Executive action. For example, one of the
more subtle but most basic of our discriminations against Catholic and
Jewish immigration is found in the assumption of our immigration
authorities that the early settlers of America were nearly all Englishmen,
as a result of which more than half of our immigration quotas are now
assigned to the British Isles, which do not use them. This calculation is
based largely upon the use of family names as an index of the national
origins of our native-born population. Thus families bearing the name
of Cabot are classified as of British descent, though we know, as an
historical fact, that the original Cabots who first visited our land hailed
from Italy and spelled their family name Caboto. We know, too, that
most other foreign names are Anglicized within three or four generations

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of American life. The President and various Cabinet officers of his
could admit to our shores thousands of victims of anti-Catholic and
anti-Semitic persecution by simply correcting the distortions in our cur-
rent basis of quota allocations, which are a heritage from days of anti-
Catholic and anti-Semitic hysteria. An act of Congress specifically
authorizes such revision.2 But this, too, has never been enforced.

Of course, there are many other fields where Congressional responsi-
bility is primary. The recommendations of the President's Committee for
strengthened civil rights laws (pp. 156-57), anti-lynching legislation (pp.
157~58)* fair employment legislation (p. 167), self-government for the
District of Columbia (p. 161), elimination of racial discrimination from
our naturalization laws (pp. 161-62), and the elimination of segrega-
tion in federal-supported institutions (on which the Committee split)
(pp. 166-67) are powerfully presented and thoroughly justified. But these
recommendations would carry greater force if they were not intermingled
with evasive "buck slips" by which presidential responsibilities are
covered up with the fiction that only Congress has the power to remedy
our sins against the ideals of democracy on which this nation was
founded. The fact remains that Congressmen are human, with enough
work to keep them busy even if they do not attempt also to do the
President's work. Moreover every Congressman represents a small section
of the United States with sectional prejudices that he cannot wholly
disregard if he wishes to serve long enough to be effective. Only the
President represents all the people of the United States, a people in
which all minorities, added together, total the entire population. Only
the President, therefore, can take the lead in a great campaign to bring
the practices of our Federal Government into line with the ideals that
have made our nation great and honored as few nations in history have
ever been honored by the peoples of the world.

The evils which demand remedy have been clearly charted by the
President's Committee with respect to the place of the Negro in Ameri-
can life. Here the Committee was able to build on a vast body of
scientific analysis of the wrongs that are suffered by our colored citizenry
and the ways in which these wrongs tear down the society that infiicts
them.

There is considerably less clarity in some of the Committee's references
to other minorities.

The most tragic of our war-time blunders on the civil rights front
was the wholesale arrest, exile, and unconstitutional imprisonments of

2. 43 Stat. 159, 8 U.S.C. §aii(e) (1940).

3, Ex parte Endo, 233 U.S. 283 (1944).

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TO SECURE THESE RIGHTS

thousands of American citizens whose only offense was to have been born
of Japanese parents. Here for the first time, by executive order, we
reverted to the barbarity of punishing children for the crimes of their
grandfathers and second cousins. What was done in a war against Japan
to persons of Japanese descent can be done in a war against Russia or
Italy or Spain to persons of Russian or Italian or Spanish descent. Thus
the civil rights of all Americans have come to hang on international
politics. Even the administrators who carried out our first racial pro-
scriptions and the attorneys who defended them in the courts have
confessed error.4 Yet on this most critical issue of civil rights the Presi-
dent's Committee does little more than pussyfoot: "The proposed per-
manent Commission on Civil Rights and the Joint Congressional
Committee might well study this problem" (p. 159). Passing the buck
to an agency that exists is bad enough, but passing the buck to two
agencies that do not exist is the height of a discretion which is not the
better part of valor.

The President's Committee gets even further from reality in its brief
comments upon the Indian problem. In Arizona and New Mexico,
Indians are not permitted to vote. This is a clear violation of the
Fifteenth Amendment, which forbids racial discrimination in the
franchise. Test cases are now pending in both states to force recognition
of the constitutional voting rights of our Indian citizens. The President's
Committee, however, suggests that the cure for Indian disfranchisement
lies in amendments to the state constitutions of Arizona and New Mexico
(p. 161), on which, of course, the Indians would not vote. One rather
expects enemies of federal anti-poll tax legislation, for example, to ad-
vance the argument that this is a problem properly dealt with by state
or federal constitutional amendments. It is rather dismaying to find
that line advanced by friends of democracy.

Equally remote from reality is the Committee's comment on the
plight of our Alaskan natives, who, being robbed right and left of their
sources of food and livelihood, are dying of tuberculosis at a rate over
30 times the national average. Recognizing these facts, the Committee
comments: "The situation is such that federal officials are seriously con-
sidering a proposal made by the Governor of Alaska to appoint a public
defender for those groups" (p. 29; cf. p. 71). This statement is untrue;

4. See Sen. Doc. No. 96, 7$th Cong., ist Sess. 19-30 (1943); Note, 11 Geo. Wash. L.
Rev. 48* (1943); Dembltz, "Racial Discrimination and the Military Judgment," 45 Col.
L, Rev* 175 (1945); Rostow, "Japanese-American Cases — A Disaster," 54 Yale L.J. 489
(1945); Rostow, "Our Worst Wartime Mistake," 191 Harper's Magazine 193 (1945);
Konviu, The Alien and the Asiatic in American Law (1946), pp. 254-79.

463

THE PHILOSOPHY OF AMERICAN DEMOCRACY

a suggestion to this effect was rejected by the Department of Justice more
than a year ago and has not been heard from since. The Secretary of the
Interior was authorized to protect Indian rights by act of Congress in
1849, but in 1946 Alaskan Indians were advised by the Secretary of the
Interior that they could no longer expect his department to render legal
assistance in their battles with white canning and mining interests. Is
it likely that a local public defender could resist pressures to which even
Cabinet officers bow? The fact is that one of the leaders in territorial
moves to separate the Alaskan natives from their property is the legal
adviser of the Governor of Alaska, the Attorney General of the Territory.
Comments upon our treatment of the natives who are held practically
as serfs on the Pribilof Islands and denied all the usual rights of citizens
were discreetly eliminated from the Committee's final report.

Equally inadequate are the Committee's comments upon the problem
of discrimination against the foreign-born and their children, a dis-
crimination which has been carried to its most fantastic extremes in the
enlistment policies of the Navy's Intelligence Service, which has generally
limited enlistments to third generation Americans.

The deficiencies of the Committee's report outside of the field of Negro
problems are not the result of any lack of human sympathy, but rather a
natural consequence of the prevalent failure to recognize that human
intolerance takes many forms. The fact that intolerance towards Catho-
lics or Jews does not ordinarily take the form of lynchings or Jim-Crow
cars does not mean that such intolerance in unimportant. Intolerance
towards the Negro does not express itself in bars to naturalization or
immigration, as does intolerance towards the Oriental, nor in expropria-
tion of Negro landholdings, as does intolerance towards the American
Indian, but that does not mean that intolerance towards the Negro is
unimportant. There is much that we have still to learn about the
operation of intolerance, but it seems safe to say that all of its forms
involve the acceptance of a non-human stereotype applied to a class of
human beings. Such stereotypes are fashionable fictions which save us
the trouble of learning to know other human beings as they really
are. In large part they are outward projections of our own basic dis-
comforts rather than factual descriptions. We say that a man works like
a dog, meaning that he works very hard, or that he is as lazy as a dog,
meaning that he doesn't work at all, and in the common speech of
the South a member of the colored race is often substituted for the dog
in both similes. This does not mean that we think lazy people work
hard, but only that we accept the object of the simile as inhuman and
thus mean to say that so-and-so is inhumanly industrious and that

464

TO SECURE THESE RIGHTS

somebody else is inhumanly lazy. So, too, when people say that Jews
are communists, in one breath, and, in the next breath, that they are
international bankers, that they are "clannish" in sticking to themselves
and that they push into company where they are not wanted, those
who speak in this fashion do not mean really to assert that communists
are Bankers or that people who stay among their own kind are forcing
their company on unwilling strangers. What an objective appraiser
of such speech gathers is that the speaker does not like Jews, whether
they are communists or capitalists, and whether they mix with other
Jews or with non-Jews. And when General DeWitt condemned the
Nisei with his famous remark: "The very fact that no sabotage has taken
place to date is a disturbing and confirming indication that such action
will be taken," 5 the substance of his statement was that he was afraid of
these people whether or not they had done anything wrong.

We are all irritated at the sight of those we have wronged. That is
why we have Jim-Crow cars and ghettoes and restrictive covenants and
segregated schools and concentration camps for the Nisei of the West
Coast but not for those of Hawaii, who have been comparatively well-
treated. That is why the Supreme Court, after putting a stop to the
naturalization of Asiatics, in 1922,° could so easily, a year later, uphold
the anti-Japanese land laws, that the President's Committee condemns
(p. 162), with the bootstrap argument: "It is obvious that one who is
not a citizen and cannot become one lacks an interest in, and the power
to effectually work for the welfare of, the state, and, so lacking, the state
may rightfully deny him the right to own and lease real estate within
its boundaries/' 7

The same sense of irritation at the sight of those whom we have
wronged shows itself dramatically in laboratory proportions in our
treatment of the American Indian. Deep in the American conscience is a
sense of having wronged the original possessors of our continent. This
twinge of national conscience may show itself in appropriations for aid
to the starving Navajo, or in other humanitarian efforts. But most
deeply it shows itself in a desire to believe that the Indian is, either
physically or culturally, a dying race, unable to utilize white man's
civilization, and therefore an obstacle in the road to progress. And so we
think of the Indian, head bowed on a drooping horse at "the end of the

5. Quoted by Justice Murphy, dissenting, in Korematsu v. United States, 323 U.S,
214, 241 n. (1944),

6. Owwa v, United States, 260 U3. 178 (1922); United States v. Thind, 261 U.S,
204 (1923).

7. Terrace v. Thompson, 263 TJ.S. 197, 220 (1923).

465

THE PHILOSOPHY OF AMERICAN DEMOCRACY

trail." In the face of that stereotype, the fact that Indians are today the
most rapidly increasing racial group of our population, trying to
exercise rights of local self-government and all other rights of citizen-
ship, and resisting all efforts to "emancipate" them from their reserva-
tion lands or other property, makes little impression. And so, because our
ancestors wronged their ancestors, we can go blithely along legislating
the Indians of Alaska or Nevada out of their lands, timber, and
fisheries, or abolishing their municipal governments and cooperatives,8
and not even a President's Committee on Civil Rights takes notice of
these assaults on the basic rights of a helpless minority.

It is precisely because the wrongs we commit lead us to hate those we
have wronged and thus lead us to seek to avoid their sight, it is because
these wrongs lead to chain reactions ending in the destruction of
civilization, that the problems raised by the President's Committee are
so vital. Oppression has not often destroyed the life of the oppressed, but
it has always poisoned that of the oppressor. Vast gaps in the Committee's
report which reflect vast gaps in popular understanding will be filled
by those who come after. But even if those gaps are far more serious
than this reviewer believes them to be, the Committee will have de-
served well of the country it has served. To have renewed the old
American vision of a nation of nations, without aristocracy of ancestry
or creed, is to have revivified our efforts to make that vision a reality.

THE OPEN SOCIETY AND ITS ENEMIES

During the Years of the Cold War it is well to remember the ancient
Chinese proverb: the first result of any war is that the adversaries adopt
each other's vices.

Today when the Open Society and its Enemies are locked in a bitter
struggle, it is painful to record how, step by step, each antagonist takes

8. As this is written [1948] a bill (S. 30) to grant lands of the Pyramid Lake Indians
to white squatters at a small fraction of their value, overruling a series of court de-
cisions adjudicating the land to be the property of the Indians, has passed the Senate
unanimously and is pending in the House; a bill to turn over Indian fisheries to
favored corporations (S. 1446, H.R. 3859), backed by the Secretary of the Interior,
has been favorably reported; a bill to transfer the timber holdings of Alaskan natives
to timber companies has been passed by unanimous consent, Pub, L. No. 385, Both
Cong., ist Sess. (Aug. 8, 1947); and several bills to confiscate Indian land reserves
and abolish Indian civic and municipal organizations are pending.

Published as a review of Karl R. Popper's The Open Society and its Enemies in
Yale Law Journal f 1951.

466

THE OPEN SOCIETY

on the worst features of its adversary. The Communist totalitarians who
once denounced capitalism for its huge expenditures on armaments, for its
imperial control of "backward" areas, for its long working hours, for its
government control of labor unions, and for the wide disparities in its
income structure, now copy each of the vices they once denounced. And
the champions of the Open Society so quickly forget how they once
denounced the totalitarianism of peace-time conscription, state control of
wages and prices, government by executive order, iron curtains blocking
the once-free movement of human beings across national boundaries,
and all the techniques that have been developed since the Inquisition
and the Star Chamber to eradicate what the Japanese Government used
to call Dangerous Thoughts.

Why do so many professed champions of the Open Society rush so
precipitately to embrace the weapons and the uniform of the enemy?
Is it because they secretly admire the supposed efficiency of totalitarian-
ism more than they hate its brutality? Is it because of a "treason of the
intellectuals?" Have those to whom the Open Society looks for leadership
and inspiration sold their souls to the Devil? And have the great idealistic
philosophers from Plato to Hegel served as the Devil's salesmen to
dignify intellectual treason?

It is to questions of this sort that Karl Popper has devoted the logical
and historical studies that make up his 7$2-page treatise on The Open
Society and Its Enemies. Whether or not one agrees with the drift of his
argument one is compelled to admire the vigor and sincerity with which
Popper drives towards the heart of fundamental ideological struggles in
which our future is being shaped. For at least he sees (p. 301), as Heine
saw, that "proud men of action . . . are nothing but unconscious instru-
ments of the men of thought," the Platos, Lockes, Rousseaus, Hegels, and
Marxes who stand outside the battles of their times and, in their studies,
arrange the battles of future generations.

Basically, it is Popper's contention that the totalitarian assault upon
the Open Society was plotted by Plato, Hegel, Marx, and their followers.
By glorifying power, defending lies, and undermining free inquiry, these
so-called idealists have corrupted the youth of our generation and of
many generations dead and gone. To vindicate the cause of freedom
it is therefore necessary to expose these evil geniuses and to clean up
the intellectual garbage dumps they have left behind; that, at least, is
Popper's general thesis, which makes a reasonably coherent volume of
what he himself describes, with some justice, as "merely scattered
marginal notes" to a history of historicism (p. 443).

Plato, according to Popper's analysis, is the perennial enemy of

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

progress, since he "teaches that change is evil, and that rest is divine"
(p. 39). The Greeks, Popper observes, were "the first to make the step
from tribalism to humanitarianism" (p. 167) and were thus the spiritual
founders of our western civilization. At the time when Athens was at
the center of the world's trade in goods and ideas, and Greek science
was breaking the chains of ancient tribal mistrusts and superstitions,
"Plato was longing for the lost unity of tribal life" (p. 80). Inspired by
his "hatred of the society in which he was living/' (p. 84) Plato elaborated
a political program which "far from being morally superior to totali-
tarianism, is fundamentally identical with it" (p. 87). Plato then "libels
his great teacher" (p. 148) by putting into the mouth of Socrates the
elaborate scheme of trickery by which the rulers of a Platonic Republic
or any other dictatorship of race or class can manage to keep human
masses under subjection. Inspired by his hatred of the democratic
tendencies of his native land, Plato was "led to defend lying, political
miracles, tabooistic superstition, the suppression of truth, and ultimately,
brutal violence" (p. 194). "The theory of the Inquisition, more espe-
cially, can be described as purely Platonic" (p. 220).

The evil influence of Plato, according to our genial author, gave back-
bone to "medieval authoritarianism" (p. 222) but needed renewing at
about the time when American and French revolutions were popularizing
the idea that the people could shape their own futures if they were
willing to devote lives and risk death in the cause of freedom. At this
juncture Hegel appeared on the scene to give a new quirk to the
philosophical defense of authoritarianism and tribalism. The reality of
change could no longer be denied, but change itself could be glorified
as a superhuman world-force before which human reason must abdicate.

By disqualifying human reason and rational criticism of prevailing
forces, Hegel was able to discredit all criticism of his employer, the
Prussian Government. The "identity of Hegelian historicism with the
philosophy of modern totalitarianism" (p. 272) thus furnishes the in-
tellectual background for the quick and simple changes by which Com-
munism and Fascism replace each other in the sagas of soth century
Realpolitik.

Although Popper is too much restrained by modern literary conven-
tions to express his own frank opinion of Hegel he does express en-
thusiastic concurrence in the comment of Schopenhauer, "who had the
pleasure of knowing Hegel personally and . . . drew the following excel-
lent picture of the master:

'Hegel, installed from above, by the powers that be, as the certified
Great Philosopher, was a flat-headed, insipid, nauseating, illiterate

468

THE OPEN SOCIETY

charlatan, who reached the pinnacle of audacity in scribbling to-
gether and dishing up the craziest mystifying nonsense. This non-
sense has been noisily proclaimed as immortal wisdom by mercenary
followers and readily accepted as such by all fools, who thus joined
into as perfect a chorus of admiration as had ever been heard before.
The extensive field of spiritual influence with which Hegel was
furnished by those in power has enabled him to achieve the in-
tellectual corruption of a whole generation' " (p. 228).

Although Marx reacted violently to Hegel's notion of world-history as
an evolutionary unfolding of ideas, and insisted that the real world was
material, that Hegel had stood it on its head, and that the new philoso-
phy of dialectical materialism could turn it right side up, Marx succeeded
in copying the worst vices of the Hegelian philosophy. Thus, in spite o£
"his keen sociological insight into the conditions of his own time, and
of his invincible humanitarianism and sense of justice/' (p. 310) Marx
and his followers, Lenin and Stalin, ended up with a world-view that
suppresses human reason and the rational criticism of prevailing forces.

Such is the main course of the author's diatribe; along the way he
polishes off the "antidemocratic" Heraclitus (p. 16), the "intelligence-
destroying influence of Aristotle" (p. 407), the "windbag Fichte" (p. 249),
and the "irrationalist authorities" Whitehead and Toynbee (pp. 431-35
et seq.).

It would be easy, but scarcely illuminating, to dismiss all this with the
words of Emerson, "Why so hot, little man?" or with Emerson's remark
to young Holmes who, sharing some of Popper's distrust of grandilo-
quence, polished off Plato in a student paper and received Emerson's
crisp comment: "When you strike at a king you must kill him/'

It is likely that Plato, Hegel, and Marx will survive the Popper attack
and continue, for better or worse, to give seminal ideas, insights, and
quirks of perspective to those who seek a faint ray of light on the
muddy conflicts of our world and the dark outlines of our future. For
what was important about these thinkers was not the platitudes of Plato
nor the mystic muddles in which Hegel's arguments generally drop out
of sight nor the cocksure prophecies of Marx and his followers.

What was significant about these philosophers was the questions they
formulated, questions which have given new dimensions to our thinking.
It is to Plato, as Popper admits, that we largely owe "that great spiritual
revolution, the invention of critical discussion" (p. 172). It is to Hegel that
we chiefly owe our modern concern with the development of ideas and
the meaning of history, and our emancipation from the long era in
which a history of art or philosophy was a formless catalogue or chronicle

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THE PHILOSOPHY OF AMERICAN DEMOCRACY

of unrelated individuals and incidents. It is to Marx that we largely owe
the critical question that is addressed today to every legal or social
institution: How does it affect the productive forces of society and the
livelihood of the common man? And having asked explosive questions
that neither they nor their contemporaries could answer, Socrates, Plato,
Aristotle, Hegel, and Marx will continue to challenge the thoughts and
energies of generations yet unborn. And those who are anxious to under-
stand the rhythms and patterns of ideas to which the world's hobnailed
boots now move and by which atoms and governments disintegrate
will have to seek out in the writings of these men something more than
Mr. Popper found in them.

An inspired American philosopher and teacher of philosophers, Wil-
mon Sheldon, has justly observed that philosophers are generally right
in what they affirm of their own vision and generally wrong in what
they deny of the vision of others. It may very well be that Popper's own
vision of a social ethics that frankly faces the realities of the present and
the uncertainties of the future is more significant than his appraisal of
the merits and demerits of Plato, Hegel, and Marx. That vision is
presented with courage and patience. It reminds us that we can make our
own future, and that in the process of building a better society we can
pursue the methods of science if our hypotheses are specific enough to
allow pragmatic tests. It shows how much easier it is to shape pragmatic
tests to the elimination of specific social evils than to the creation of
Utopias (p. 571). It reminds us that in the struggle to preserve and
extend the moral values of the Open Society none of us can escape a
moral responsibility for the consequences of our action or inaction.

It reminds us (as Plato and Aristotle pointed out long ago) that power
corrupts those who wield it, and the conclusion follows that we cannot
win security by surrendering our freedoms. For the state to which we
sell freedom for security may take from us, along with our freedom,
even that little security which we had at the start of the bargain. Thus
Popper focuses attention on a question which European political think-
ers from Plato to Stalin have consistently overlooked in their search for
The Perfect State, the question of how the evil that governments do,
by reason of the corruption of power, may be practically minimized.
That question is not original with Popper. The whole American tradi-
tion of disrespect for constituted authority makes this question central
in our political thinking and this helps to explain why the United
States has prospered so greatly under so many incompetent presidents
and governors. But Popper writes out of the heart of the European
political tradition, in which respect for authority goes hand in hand with

470

THE OPEN SOCIETY

the assumption that government is an exercise of superior wisdom or
morality. That Popper and a few other political scientists, here and
abroad, have come to doubt that assumption is a good sign.

It did not take philosophers like Plato or Marx to invent the theory
that the state can do no wrong: this is the natural assumption of every
oriental despotism. What Plato and Marx (with Hegel's unintended
help) did was to develop a technique of reasoning by which any existing
regime could be criticized. If we are to improve these techniques of
rational criticism of political institutions, as Popper most earnestly
desires, we cannot afford to ignore the forms of the dialogue and the
dialectic that Plato and Marx perfected. That Plato traced the logical
presuppositions of tribalism and Marx the logical presuppositions of
economic dictatorship may help us to avoid the dangers of both.

Not many years ago, a materialist-minded member of the U.S. Senate
grasped his Bible and thundered: "It has been said on the highest
authority: 'Skin for skin, yea all that a man hath will he give for his
life/ "

That was a bad mistake, because his adversary in the debate promptly
replied that he had always suspected that the orator regarded the
devil as his highest authority and that it cleared the atmosphere now to
have this admission made publicly on the floor of the Senate.

If Scripture can quote Satan in a moral drama like the Book of Job
without becoming Satanic, if a novelist like Cervantes can write of the
hero of La Mancha without becoming Quixotic, then is it not possible
for a philosopher like Plato to explore the implications of tribalism
without becoming identified with one or more of the characters in his
dramatic and explosive dialogues? And when Marx saw what his followers
had done with his insights, did he not have every right to thank God
that he was not a Marxist?

This reviewer makes no pretense of knowing enough of Greek history
to criticize Popper's opinion of what Plato really thought about the
characters in his dialogues and their diverging views. But is that ques-
tion of any real importance? Do we need to know why Einstein turned
to physics in order to appreciate the classic beauty of his mass-energy
formula? To trace the logical and historical consequences of ideas we
loathe is not a loathsome task but one of the greatest services that any
lover o£ wisdom can ever perform. Despite Popper's loathing for his
predecessors he contributes most to our understanding when he walks
in Platonic and Marxian paths, not submissively as some Platonists and
Marxists have done, but courageously, smiling at temporarily prevailing
authorities with the same smile that curled the lips of Plato or Karl Marx,

47 *

THE PHILOSOPHY OF AMERICAN DEMOCRACY

LAW AND SOCIAL ACTION

Adam, the baby, and the man from Mars, as a distinguished philosopher
once observed, are the three figures to whom our western society has most
often turned in seeking a fresh and unprejudiced appraisal of its dis-
tinctive institutions. For the rest of us, most established practices are
accepted uncritically because long familiarity and the normative force
of the actual blind us to possible alternatives. We in America have been
particularly fortunate in having received upon our shores a succession
of itinerant observers whose freshness of approach to our scenes was
strengthened by a vivid awareness of scenes in other plays. To the com-
pany of Las Casas, De Tocqueville, Lord Bryce, Andr£ Siegfried, and
many others, not all of whom returned from what they found, there
must now be added the gallant figure of Alexander Pekelis.

Here was a man who had lived under the four mightiest dictatorships
of his generation and had seen three of them crumble to dust. He had
gone to school in Russia under the dictatorship of the Romanoff
dynasty, and was deprived of his Russian citizenship under the more
efficient and more ruthless dictatorship of the Communist dynasty. In
Mussolini's Italy he obtained a law degree and taught jurisprudence for
a while. Shortly after he had fled to France, that unhappy land fell to the
Nazi invader. Fleeing from his fourth dictatorship, he reached the shores
of a free America and, since Senator McCarran's various anti-immigration
bills had not yet received Congressional approval, he was admitted to
our country. He was allowed to study at Columbia Law School, to teach
at the New School of Social Research, and to help every oppressed
minority that needed help, for a few brief years. An airplane accident in
Ireland in 1946 deprived the world of a man who, as Max Ascoli says
in his introduction to this volume, "had an amazingly disturbing power
to assimilate the culture of any country . . . and . , . gave back to
every school, with compound interest, everything he had received from
it" (p. x).

Coming to American shores with the experience of four dictatorships,
Pekelis found the key to our social and legal development in "the
fundamental pluralistic traits of American society" — in the fact that
"the United States is not a monolithic block, or a mere aggregate of
individuals and not even a 'melting pot/ " (p. 223) Government, for us,
is not a system of commands emanating from a single sovereign. Rather,

Published as a review of Alexander H. Pekelis' taw and Serial Action; Selected
Essays in University of Pittsburgh Law Review, 1952,

472

LAW AND SOCIAL ACTION

it is a loose constellation of national, state, and municipal authorities,
within each of which several different agencies and even different legal
systems (strict law, equity, and administration) compete for respect.
And enveloping these "official" governments are a host of voluntary
organizations exercising, in a variety of fields, the powers of "private
governments/'

In the realm of choice among these various authorities, Pekelis finds
the essence of American freedom. And this freedom is implemented
when people assert their rights not merely as atomic individuals, but as
members of the many overlapping independent organized groups that
constitute our society. If these groups should be destroyed or deprived
of their strength, each of us would be helpless against an omnipotent
state. In his program of action for the Commission on Law and Social
Action of the American Jewish Congress— which might have been a
program of action for the National Association for the Advancement of
Colored People or the Association on American Indian Affairs or the
Japanese-American Citizens League or any one of a hundred other
groups dedicated to the protection of minority rights— Pekelis sums up
his pluralistic political philosophy:

The Jewish cause in the United States thus depends on the tradi-
tional American aversion to a leveling centralized government and
to the compulsory uniformity of all members of a society. It
partakes of all the difficulties and complexities inherent in a
pluralistic conception of society and — which may be but another
way of putting it — a pluralistic conception of human personality.
... It claims our right to be, at the same time, loyal, devoted, and
selfless members of a great variety of overlapping groups— American
citizens and citizens of the world; American Jews and members of
a world Jewish community; citizens of a state and citizens of a
village; members of a political party and members of a religious
association. This is a right unthinkable in a simplified, monolithic
society, a right dreaded by all kinds of totalitarian tyrants but
truly inestimable to free men. - . . (p. 224)

Pekelis, of course, is not the first visitor to be struck by the fragmenta-
tion of social and political power in our land, by the rivalries of federal,
state, and municipal governments, by the conflicts inherent in our
"separation of powers/' and by the traditional American distrust of all
government and all laws, which reflects itself not only in our journalism
and public opinion but also in our extraordinarily high crime rate.
But while other foreign observers have seen only inefficiency, anarchy, or

473

THE PHILOSOPHY OF AMERICAN DEMOCRACY

youthful rebellion in these patterns— Shaw called our constitution a
"conspiracy against government"— Pekelis has had the wisdom to see
the connection between this disorganization of governmental power and
the high degree of freedom that Americans enjoy (even in times of panic
and hysteria). Where else in the world would a government issue a
special commemorative stamp, as the United States has recently done, to
honor at their final encampment those old men who as boys took up arms
to destroy that government by force and violence?

Because he is keenly aware that the living law is more than a series of
Congressional commands, Pekelis is able to supply American liberals
with guides for action in the many situations where Congressional
action is either impossible or ineffective. His essay on The Dormant
Power of American Cities calls attention to the great range of municipal
powers that can be brought to bear upon social problems long before
national opinion has crystallized to a point where a national solution
is feasible. It is noteworthy that within a few years the drive which
Pekelis inaugurated for municipal legislation on unfair employment
practices was successful in a large number of American cities.

Recognizing that American courts are as much law-making bodies as
are legislatures, Pekelis offers a series of acute observations on the
process of law reform through test cases. But these observations are not
dispassionate. They carry the fire of prophecy as well as the skill of a
first-rate lawyer probing the soft points in the enemy's legal armor.
Many of the test cases that these essays discuss in the future tense have
been carried through to victory in the few, brief years that have passed
since the writing of these essays. Because of these essays, or because of
the inspiration which Pekelis gave to fellow-workers, or because of the
briefs from which some of these essays have been excerpted, racial
intolerance has suffered a series of significant defeats in an otherwise
conservative Supreme Court. The author's demonstration of the essen-
tially governmental character of political parties, state universities, real
estate associations, and other so-called private organizations lays the
foundation for an increasing application of constitutional safeguards
to situations where such organizations seek to impose an inferior status
upon any race or creed.

The fact that many of the prophecies with which this volume
abounds have been translated into reality does not rob the book of
interest. Rather it emphasizes the importance of the insights and the
techniques with which Pekelis operates and their potential applicability
to new legal problems. The basic approach is best put in his own words:

474

LAW AND SOCIAL ACTION

Most people in areas of impairment of civil liberties do not know
how to ask for their rights, (p. 183)

Assertion must precede recognition . . . awareness and assertion of
rights can become the condition of their existence. Secrecy and
deviousness are incompatible with assertion, (p. 191)

But recognition does not always follow assertion, and almost never
does so at once. If minorities want to conquer the right to collective
action they must be ready for financial and physical sacrifices — and
for setbacks and defeats. No change can be accomplished with a
previous license, and no revolution, however peaceful, with a
declaratory judgment obtained in advance, (p. 192)

On the other hand, short-range defeats are often long-range victories.
The defeat of a righteous cause in a court often becomes an im-
pelling argument for legislative or social change and results in a
political victory, (p. 192)

Underlying this willingness to risk short-range defeats there runs an
echo of the faith of the old Hebrew prophets: "We believe that the fate
of the oppressed and persecuted, of those who suffer and have no other
hope than justice, is preferable to the fate of the oppressors and perse-
cutors and of those who are continuously tempted by might and power
to forsake right and justice." (p. 219)

The political pluralism of Pekelis has profound significance for juris-
prudence as well as for practical programs of law-reform. In the historic
competition between courts of law and courts of equity, which has so
much in common with the inter-departmental rivalries of Washington
today, Pekelis finds an important key to Anglo-American freedom. No
agency, no magistrate, is indispensable; heads or jurisdictions may be cut
off whenever they become intolerable. In the end, the choices among
competing purveyors of government are made by the consumers of that
ineffable commodity. And if the jury system, as Pekelis (following De
Tocqueville) observes, has not proved to be the most infallible method
of law-execution, it has at least turned out to be the most effective
method of public legal education yet tried, (p. 65) It may be, however,
that the jury system is important to us only because our jurymen have
enough disrespect for courts to form their own judgments in disregard
of the instructions or ill-concealed wishes of the man in the robe. Cer-
tainly, in most other countries, as Pekelis observes, where guaranties of
jury trial appear in statutes or constitutions, these guaranties are

475

THE PHILOSOPHY OF AMERICAN DEMOCRACY

commonly disregarded in practice. In some Latin American states, for
example, where the right to jury trial is proclaimed in the constitution,
the authorities have never drawn up a list of jurors. And, when jury
trial was abolished by government decree in Germany in 1924, nobody
apparently raised an objection. Juries, local draft boards, and local school
boards, are part of the pluralist pattern. And it is because political
authority is so widely decentralized, Pekelis thinks, that it is possible to
have large areas of discretion scattered about without running into a
monolithic dictatorship or the "intolerable paternalism" of a "tyrannic
government by experts." (p. 17)

Although its advocates and its critics have traditionally regarded ad-
ministrative law as a foreign importation, Pekelis makes a very persuasive
case for the proposition that American administrative agencies are far
more important than their Continental counterparts and more deeply
rooted in the soil of judicial practice. At least since the rise of equity,
we are told, Anglo-American courts have exercised much broader dis-
cretion (e.g., in deciding when care is "reasonable" or when a contract
is "contrary to public policy") and a great deal more power (e.g., in
forcing a defendant to pay a judgment, through "supplementary pro-
ceedings") than is exercised by Continental courts. Consequently, when
commissions decide whether trade practices are "fair" or "reasonable"
and issue "cease and desist" orders, they are behaving in ways char-
acteristic of Anglo-American courts, and the use of such agencies must
be viewed not as a departure from judicial practice but rather as a form
of judicial specialization.

Because our courts are so much more important in the law-shaping
and administrative process than Continental courts, Pekelis thinks that
we need to outgrow the tradition that arguments about the social
desirability of legislation should be addressed only to legislatures. In
his essay on A Jurisprudence of Welfare, probably the most important
essay of the volume, Pekelis makes an eloquent plea for a more conscious
appreciation of the social considerations which enter into every judicial
decision and which divide or multiply the force of every lawyer's
argument.

A central need of modern education, he insists, is "to narrow the
appalling chasm between those who, in schools and research centers,
study our community and those who, in legislative committees and
courts, shape its life." (p. 14) The usual arguments against judicial
consideration of social policy are dissected with devastating results. Now
and then one wishes that Pekelis would recognize that most of what he
is urging has been said before by Bentham, Holmes, M, R, Cohen, and

476

LAW AND SOCIAL ACTION

some of their followers. But this is forgivable in a writer who is un-
willing to limit himself to a legal audience. Indeed Pekelis is modest
enough to insist that the "jurisprudence of welfare" which he urges
"is no answer to the problems of our time . . . but rather a mode of
inquiry." (p. 40) And with that conclusion few of the Benthamites or
realists whom he dismisses rather cavalierly would want to quarrel.

As an ex-editor of the Columbia Law Review, Pekelis would be the
first to admit that these essays do not come up to usual law review
standards of scholarship: viz., less than 5% of the acreage covered by
these pages is devoted to footnotes. But if scholarship includes the
ability to see beyond the years and the even rarer ability to see through
the academic walls that separate one department of knowledge from
another and all of them from the arena of social struggle, then this
volume deserves to be considered a brilliant contribution to legal
scholarship.

What Pekelis has to say is said with a verve and richness that is rare
in legal exposition. His writing is two-dimensional, not in the mechani-
cal sense in which most law review articles and all law review case
notes are two-dimensional, leaving the reader in doubt at each num-
bered cross-road whether to read ahead horizontally or to descend verti-
cally, but in the very real sense that each of his sentences points not
only to preceding and succeeding sentences in a linear argument but to
something outside and unsaid. The richest sentences of these essays carry
echoes of what has been said somewhere else in other contexts, and the
suggested analogy, parallel, or contrast adds to our understanding.

Concrete cases cannot be decided by general propositions — nor with-
out them. (p. 20)

Inertia ... is a good servant and a bad master. Sky-scrapers cannot
be built without inertia — or by it alone, (p. 22)

Jurisprudence of welfare is thus no lawyer's farewell to arms. It is
one thing to recognize that law is too serious a business to be left
to lawyers, and that even if there are legal problems there are no
strictly legal answers to them. It is quite another to pretend to
solve problems by saying: "It's simple; it is somebody else's busi-
ness/' (p. 40)

Law without a knowledge of society is blind; sociology without a
knowledge of law, powerless, (p. 257)

What grips the mind in these and a hundred other flashes of insight
is no facile exaggeration but a deep sense of polarities and of balance.

477

THE PHILOSOPHY OF AMERICAN DEMOCRACY

The rhythm of the author's thought has a contagious quality. It leads
the reader, again and again, to stop reading and to think for himself, to
go beyond the immediate argument to seminal insights that illuminate
fields the author never knew.

The legal reader will regret that antipathy to footnotes was carried to
the point of omitting not only the citations for most quotations but even
the times and places at which several of the essays first appeared. But
most lay readers, I suppose, will rejoice at the lack of footnote inter-
ruptions. And lawyers and laymen alike will admire the skill with which
the editor has excerpted from briefs and topical statements words that
will give forth light and power long after time has disposed of the
particular issues to which they were addressed.

Students of law and lovers of freedom owe a great debt to Milton R.
Konvitz and Alvin Johnson for rescuing these essays from obscure
places and putting together a volume that will influence law and social
action in this country for decades to come.

EQUALITY BY STATUTE: LEGAL CONTROLS
OVER GROUP DISCRIMINATION

The legal framework of American democracy has been fashioned, in
large part, as a response to four great challenges: political tyranny,
chattel slavery, industrial autocracy, and racism. Out of the challenge of
the political tyranny of King George the Third emerged most of what is
distinctive about our American form of government. As the major ob-
jectives of this revolutionary movement came to be safely institutional-
ized, the living conscience of America came to focus more and more upon
the inconsistency between the practice of slavery and our national pro-
fession that all men are born free and equal. When the abolition of
slavery had been achieved, the perspective of American idealism shifted
to the challenge of economic autocracy. A long period of economic legis-
lation, beginning with the anti- trust laws of the iSgo's and the work-
men's compensation laws that soon followed and finding its fulfillment
in the laws of the Roosevelt Era protecting labor's right to organize and
bargain collectively, establishing minimum wages and maximum hours,
and setting up a comprehensive system of social security, made it in-
creasingly difficult to view American workers and consumers as an
exploited proletariat.
And so, some time in the 1930*5 the national conscience reached a

Published as a review of Morroe Berger's Equality by Statute: Legal Controls mier
Group Discrimination in Congress Weekly,

478

EQUALITY BY STATUTE

stage at which neither King George the Third nor Simon Legree nor
Wall Street could any longer kindle in the hearts of young or old ideal-
ists the strong moral drives that are prerequisite to basic legal change.
Quickly enough the empty devil's chair was preempted by Adolf Hitler,
who showed more eloquently than any teacher or preacher before him
what hells of horror can emerge from the basic strains of racism in
American life that have for so long mocked our national faith in
democracy and human equality.

Racial discrimination, the theme of Morroe Berger's book, Equality
by Statute, is not something new in American life. What is new in
American life is the sensitizing of the national conscience to the deadly
infection of racism. There is every reason to expect that the concern
with the domestic and international implications of racism which has
played so large a role in American life since Pearl Harbor is likely to
grow in the decades before us.

In each of the earlier great challenges to the American conscience,
the defenders of the status quo were quick to assert the futility of a
direct legal attack upon existing evils. Granted that King George the
Third was a tyrant and a fool, that slavery was a profound social evil,
and that unrestrained capitalism was inhumanly cruel, it could always
be said that 'these evils would gradually recede under the gentle in-
fluences of advancing education and moral suasion. And so today the
old argument that coercive laws are not fit instruments for the cure
of economic ills is given a new twist. Racial discrimination, we are told
by the defenders of the status quo, is unjust and indefensible but
coercive legislation is not the proper instrument to use for the correction
of such ills. Instead we are told to rely upon education and moral
suasion.

Morroe Berger's volume provides a straightforward answer to this
moral defeatism. The argument that law is impotent in the field of
prejudice is most effectively met by showing that the whole framework
of racial discrimination and segregation in the South is largely a
product of coercive law. The notion of law as neutral in race relations
is as unrealistic as the notion of a neutral battlefield. Law is the battle-
field in which all great social struggles take place, and the contours,
natural or artificial, of the battlefield are as important as the magnitude
of the opposing forces in determining the outcome of the struggle.

Thus Berger shows in convincing fashion that legislatures and courts
down to the later 1930*5 were busily establishing and strengthening legal
discriminations based on race, with the United States Supreme Court
providing a mantle of respectability for the racist forces. From 1868 to

479

THE PHILOSOPHY OF AMERICAN DEMOCRACY

1937, Berger shows, segregation and various other forms of racial dis-
crimination were established by state statutes which were pretty generally
sustained by the Supreme Court. At the same time that tribunal was
busily emasculating federal civil rights statutes and federal constitutional
provisions that sought to end some of the more extreme forms of such
discrimination. In the face of these decisions the drive to secure equal
rights for the emancipated slaves petered out and new forms of racism
penetrated fields of law, such as immigration and land ownership, where
racial discrimination had not been known before.

Berger fixes at 1937 the beginning of the crucial shift in the Supreme
Court's outlook on the problem of racial discrimination. Actually, I
think, the really important shifts of the Supreme Court came later. It
was only in 1944 that the Supreme Court, having upheld special curfew
and evacuation orders based upon "ethnic affiliations/' decided in the
Endo case that the Federal Government could not hold admittedly
loyal citizens indefinitely in detention camps because of their "ethnic
affiliations/' The same year saw the crucial case of Smith v. Allwright,
outlawing the Texas white primary; Morgan v. Virginia, invalidating
state laws requiring segregation in interstate buses, was decided in 1946;
the cases outlawing racial restrictive covenants in 1948; and the Sweatt
and McLaurin cases, which practically outlawed segregation in public
higher education, in 1950.

So, too, in the arena of legislation, the drive to eliminate racial dis-
crimination in employment did not really get under way until after
Pearl Harbor. After Pearl Harbor any defender of racism could be
viewed as a defender of Hitlerism, and the dependence of democratic
forces upon non-white allies or potential allies in a life and death
struggle set the stage for a surge of sentiment and earnest activity to
eliminate racial discrimination from our national life. While some of
the camp followers of this movement quickly lost interest at the close of
the war, and a good many who had been quiet or neutral on the FEPC
issue during the war suddenly discovered great dangers in anti-dis-
crimination legislation as soon as the war was over, the solid effort to
remove racial discrimination from the structure of American life remains
today the Number One appeal to our national conscience.

The problem that we face now is not whether legislation ought to be
used to curtail discrimination — both major parties and all national
political leaders ostensibly agree on that proposition — but rather how
legislation can best be used to achieve this end. Berger examines one of
the more promising legislative efforts in this direction, the operation of

480

CIVIL RIGHTS IN IMMIGRATION

New York State's Ives-Quinn Law Against Discrimination. The ex-
amination is objective and meticulous, although it might carry more
significance if it were linked with an examination of federal activities
in the field. The President's Fair Employment Practice Commission is
passed over in scarcely more than a single paragraph, and the origin of
the New York statute is discussed without reference to the original
Chavez bill on which it was largely modeled. In general, Berger finds
solid positive achievements under the New York law, but he notes with
some dismay that the administration of this statute by a specialized
agency has resulted in some of the typical manifestations of bureaucracy
— the failure to make public the relevant facts, the unwillingness of
officials to cooperate with unofficial groups that have amassed consider-
able information and know-how on discrimination and its cure, and a
certain timidity in the use of legal sanctions, coupled with a strong
preference for amicable adjustments on generous terms.

Regrettably the author has little to say on the ways in which these
evils of bureaucracy might be reduced and a larger role in the enforce-
ment of anti-discrimination laws might be given to aggrieved parties or
to interested civic organizations (as was accomplished, for example, in
humanitarian legislation sponsored by the Society for the Prevention
of Cruelty to Animals). But that is another story. If Professor Berger
will deal with that problem in a sequel to Equality by Statute, he will
more greatly serve a just cause to which he has already made a
significant contribution.

CIVIL RIGHTS IN IMMIGRATION

Every democratic society entrusts to the most despised human beings in
its midst the high responsibility of protecting the human rights of all its
members. For when those who are rich, powerful, and respected receive
considerate and humane treatment from agencies of government, this
carries no assurance that similar treatment will be extended to less
fortunate members of society. But when basic rights are available to
kidnapers, subversives, and aliens just because they are human, then all
the rest of us can take comfort in the assurance that our human rights
will also be respected. As the great Kantian philosopher of modern
Germany, Herman Cohen, in commenting on the Mosaic ideal that we
"love the stranger" (Leviticus 19:33-34) and "have one law alike for

Published as a review of Milton R. Konvitz's Civil Rights in Immigration in New
Republic, 1954. Written on the last day of Felix Cohen's life.

481

THE PHILOSOPHY OF AMERICAN DEMOCRACY

the stranger and the homeborn" (Leviticus 24:22), observed, "The alien
was to be protected not because he was a member of one's family, clan,
religious community; but because he was a human being. In the alien,
therefore, man discovered the idea of humanity/'

The lawyer or publicist who defends the rights of kidnapers, sub-
versives, and aliens, is bound to attract to his own shoulders a good
share of the hatred which society directs at his unpopular clients. It
therefore takes a special sort of courage and an extraordinary devotion
to the cause of democracy to produce such a work as Milton Konvitz
has given us in this volume which is an excellent timely summary of
recent developments in our law of immigration and naturalization.
It is equally important as an analysis of the bureaucratic oppressions that
threaten all of us, native-born as well as immigrant, in a society ruled
increasingly by fear. For history shows that techniques of tyranny and
oppression are generally tried out and perfected in application to some
small and friendless group before they are extended to the rest of society.
In the current decade it is the alien who is the subject of these evil
experiments, as in earlier decades it was the Indian, the Negro, the
Mormon, or the Chinese laborer.

Of the recent developments in American law governing immigration,
deportation, and citizenship, Professor Konvitz calls particular attention
to nine significant violations of human rights which are either intro-
duced or intensified in the McCarran-Walter Act of 1952: (i) The
injection of a special ancestry qualification to control the immigration
of Europeans, Canadians, or Latin Americans who may have "Asia-
Pacific" ancestors. (2) The new discriminations which have just been set
up to limit immigration from colonial areas and especially from the
West Indies. (3) The perpetuation and rigorization of the national
origins quota system. (4) The elimination of professors from quota-
exempt categories — part of developing distrust of reason and intelligence.
(5) The denial of ordinary rights of notice, hearing, and review in ex-
clusion and deportation cases. (6) The elimination of statutes of limita-
tion in deportation cases. (7) The use of deportation as a punishment
for offenses not connected with immigration. (8) The use of denaturalize!-
tion procedures to subject naturalized citizens to such deportation. (9)
The self-defeating definition of subversive classes resulting in the ex-
clusion of valuable allies in the cold war against communism.

Perhaps the most important point at which Professor Konvitz goes
beyond the recommendations of President Truman's Commission on
Immigration and Naturalization has to do with notice, hearing, and

CIVIL RIGHTS IN IMMIGRATION

review in deportation and exclusion cases. In the final analysis, all
the injustices we have perpetuated against immigrants with the blessing
of the Supreme Court rest on two legal factors: first, that immigration is
simply a matter between the Federal Government and foreigners in
which foreigners have no rights against the Government, and second, that
deportation is not punishment. Professor Konvitz sees clearly what the
President's Commission did not see, that immigration affects Americans as
well as foreigners, and that the only solid legal basis upon which a regime
of law can take the place of administrative absolutism in exclusion as well
as deportation cases is by recognizing that an American citizen sponsoring
the admission of a wife, parent, business associate, professional colleague,
or assistant, and willing to undertake the responsibilities that may
properly be attached to such sponsorship, should have the same ele-
mentary rights, with respect to notice, hearing, and judicial review, that
would be available if the object of his concern were livestock or
machinery rather than a living human being.

Presidential commissions on civil rights are notoriously more inclined
to blame Congress than they are to blame the Executive when civil
rights are ignored in practice, even though the fact remains that most
of the important violations of civil liberties under recent liberal admin-
istrations have been attributable more to Executive than to Con-
gressional decisions. That fact not only illuminates the difference be-
tween the approach of the Truman Commission and that of Professor
Konvitz to the problem of procedural protections, but also gives a special
significance to the many points on which Professor Konvitz — who cannot
be accused of bureaucratic bias — agrees with the recommendations of the
Truman Commission.

At only one point does Professor Konvitz's volume fail to offer what
a reader familiar with the author's magnificent intellectual equipment
might expect of this work. What is called for at this critical stage in
our legal and political development is an objective analysis of the con-
sequences that have followed from varying practices in various places
and periods in American and world history. There is much reason to
believe that such a study would demonstrate that while intolerance may
not have much enduring effect upon the victims of discrimination it
has regularly narrowed the economic opportunities and international
influence of those states or localities that practiced such discrimination.

Certainly it would add much to our practical understanding of the
consequences of rival immigration policies if Professor Konvitz had
attempted to calculate, for example, the cost in blood and substance of

483

THE PHILOSOPHY OF AMERICAN DEMOCRACY

our anti-Japanese laws. Cold analysis of the high cost of prejudice may
not carry the high emotional flavor of prophetic utterance, but in the
long run may enlist the attention of many practical Americans, in and
out of Congress, who are accustomed to hate at sight any political
precept that seems to be based on considerations of ethics or humanity.

484

Bibliography of Felix S. Cohen *

BOOK I. LOGIC, LAW, AND ETHICS

BOOKS

Ethical Systems and Legal Ideals: An Essay on the Foundations of Legal
Criticism. New York, Falcon, 1933. xi, 3O3p. Reissued by Cornell
University Press, 1959, in Great Seal Series (paperback). Parts re-
printed in The American Jurisprudence Reader, ed. by Thomas A.
Cowan (New York, Oceana, 1956) (paperback and clothbound), pp.
30-41.

Readings in Jurisprudence and Legal Philosophy (in collaboration with
Morris Raphael Cohen). New York, Prentice-Hall, 1951. xvi, 944p.

ARTICLES

•{•"What is a Question?" The Monist, 39 (Juty» 1929)> 35°"~^4-
-(-"Casuistry," Encyclopaedia of the Social Sciences, 3 (1930), 265-66.
"The Ethical Basis of Legal Criticism," Yale Law Journal., 41 (December,

1931), 201-20.
"A Factual Study of Rule 113," Columbia Law Review, 32 (May, 1932),

830-58.
"The Subject Matter of Ethical Science/' International Journal of

Ethics, 42 (July, 1932), 397-4*8.
f"Modern Ethics and the Law," Brooklyn Law Review, 4 (October,

1934). 33-5°-

•^'Transcendental Nonsense and the Functional Approach," Columbia
Law Review, 35 (June, 1935), 809-49.

* Compiled by Felix S. Cohen with his own titles in June, 1953; amplified by Ida
K. Johnson of the Department of the Interior Library, Theodore H. Haas of the
Department of the Interior Solicitor's Office, and Lucy Kramer Cohen, 1954; re-
vised by Lucy Kramer Cohen, 1959.

f Included in this volume.

485

BIBLIOGRAPHY

f"The Problems of a Functional Jurisprudence/' Modern Law Review

(London), / (June, 1937), 5-26.
"What City College Will Contribute to the Development of the Law,"

The Barrister (City College of New York), 2, No. 2 (Spring, 1938),

4-16.
f'The Relativity of Philosophical Systems and the Method of Systematic

Relativism/' The Journal of Philosophy, 36 (February, 1939), 57~72-
"Holmes-Cohen Correspondence," ed. by Felix S. Cohen, Journal of the

History of Ideas, 9 (January, 1948), 3-52.
f 'Field Theory and Judicial Logic," Yale Law Journal, 59 (January,

-(-"Judicial Ethics/' Address at symposium on "Ethical Values and the Law
in Action" at the College of Law, Ohio State University, February
25, 1950. Published in Ohio State Law Journal, 12 (Winter, 1951),

3-13-

•(•"Human Rights: An Appeal to Philosophers," The Review of Meta-
physics, 6 (June, 1953), 617-22. Reprinted in Life, Language, Law:
Essays in Honor of Arthur F. Bentley, ed. by Richard W. Taylor
(Yellow Springs, Ohio, Antioch Press, 1957), pp. 204-09.

"The Reconstruction of Hidden Value Judgments: Word Choices as
Value Indicators," in Symbols and Values, ed. by Lyman Bryson
(New York, Harper, 1954), pp. 545-61. Reprinted in Essays, ed. by
Leonard F. Dean (rev. ed., New York, Harcourt, Brace, 1955), pp.
22-32.

"Dialogue on Private Property/1 Rutgers Law Review (Memorial Issue),
9 (Winter, 1954), 357-87.

REVIEWS

•\Law and the Modern Mind, by Jerome Frank. American Bar Association

Journal, 1 7 (February, 1931), 111-13.
•fBentham's Theory of Fictions, by G. K, Ogden and The Theory of

Legislation, by J. Bentham, ed. by C. K. Ogden, Yale Law Journal,

42 (May, 1933), 1149-52.
^Civilisation and the Growth of Law, by William A. Robson, Columbia

Law Review, 36 (May, 1936), 861-63.
The English Legal Tradition, by Henri Levy-Ullman. Yale Law Journal,

46 (February, 1937), 730-31-
f Included in this volume.

486

BIBLIOGRAPHY

•{Fundamental Principles of the Sociology of Law, by Eugen Ehrlich.

Illinois Law Review, 31 (April, 1937), 1128-34.
Mr. Justice Frankfurter: Law and Politics, Occasional Papers of Felix

Frankfurter, 1913-1938, ed. by Archibald MacLeish and E. F.

Prichard, Jr. New Republic, 101, No. 1303 (November 22, 1939),

145-46,

\An Introduction to the Sociology of Law, by N. S. Timasheff. Harvard

Law Review, 53 (February, 1940), 707-10.
•fLaw as Logic and Experience, by Max Radin. Harvard Law Review, 54

(February, 1941), 711-14.
Contemporary Legal Scholarship: Legal Realism and Justice, by Edwin N.

Garlan; The Theory of Legal Science, by Huntington Cairns; Studies

in Legal Terminology, by Erwin Hexner. University of Chicago Law

Review, 8 (June, 1941), 807-09.
My Philosophy of Law: Credos of Sixteen American Scholars (North-

western University, Julius Rosenthal Foundation for General Law).

Tulane Law Review, 18 (October, 1943), 172-78.
•\An Analysis of Knowledge and Valuation, by Clarence I. Lewis. Harvard

Law Review, 61 (September, 1948), 1469-73.
-fLegal Philosophy from Plato to Hegel, by Huntington Cairns. Journal

of the History of Ideas, 10 (October, 1949), 575-79-
The Province and Function of Law, by Julius Stone. Yale Law Journal,

59 (December, 1949), 177-81.
The Sense of Injustice, by Edmond N. Cahn. Harvard Law Review, 6)

(June, 1950), 1481-84.

UNPUBLISHED PAPERS J

"The Aesthetic and Metaphysical Bases of the Conflict o£ Laws/' Seminar

Report, Columbia Law School, January, 1931.
f "Law and Language," Address before the Riccobono Seminar in Roman

Law, Catholic University Law School, Washington, D.C., May 19,

f Included in this volume.

JOn deposit in the Yale Law Library.

487

BIBLIOGRAPHY

BOOK II. THE INDIAN'S QUEST FOR JUSTICE

BOOKS AND PAMPHLETS

The Powers of an Indian Tribe. Washington, D.C., U.S. Department of

the Interior, 1934. 8gp. Mimeographed.
Statutory Compilation, Indian Law Survey, ed. by Felix S. Cohen.

Washington, D.C., U.S. Department of the Interior, 1940. 46 vols.

M imeographed.
The Legal Status of the Indian in the United States. Washington, D.C.,

U.S. Department of the Interior, 1940. i8p. Mimeographed. Trans.

into Spanish for the First Interamerican Indian Congress, Patzcuaro,

Mexico, April, 1940, under the title, Estado Legal de los Indios

en los Estados Unidos. sop.

Handbook of Federal Indian Law. Foreword by Harold L. Ickes; Intro-
duction by Nathan R. Margold. Washington, D.C,, U.S. Government

Printing Office, 1941. 455?.
Supplement: Reference Tables and Index; Bibliography. 1942.

vii, pp. 457-665.
4th Printing. 1945. 66sp.

ARTICLES

•(-"Anthropology and the Problems of Indian Administration," The
Southwestern Social Science Quarterly, 18, No. 2 (September, 1937),
1-10.

f How Long Will Indian Constitutions Last?" Indians at Work (U.S.
Department of the Interior), 6, No, 10 (June, 1939), 40-43.

"Indian Rights and the Federal Courts," Minnesota Law Review, 24
(January, 1940), 145-200. Excerpts reprinted in Walter M. Daniels,
American Indians, Reference Shelf Series, 29, No. 4 (New York,
H. W. Wilson, 1957), 89-103.

•(•"The Spanish Origin of Indian Rights in the Law of the United States,"
Georgetown Law Journal, 31 (November, 1942), 1-21. Trans, into
Spanish under the title, Derecho Indigena: Contribudon Espanola
al Sistema Legal de los Estados Unidos. Washington, D.C, National
Indian Institute, U.S. Department of the Interior, 194$, sop.
•(-Included in this volume.

488

BIBLIOGRAPHY

f 'Indians Are Citizens!" The American Indian, i, No. 4 (Summer,
1944), 12-22. Excerpts reprinted in Walter M. Daniels, American
Indians, Reference Shelf Series, 25?, No. 4 (New York, H. W. Wilson,
*957)> 103-07.

f "Indian Claims/' The American Indian, 2, No. 3 (Spring, 1945), 3-11-
Excerpts reprinted in Walter M. Daniels, American Indians, Refer-
ence Shelf Series, 29, No. 4 (New York, H. W. Wilson, 1957), 116-21.

"How We Bought the United States/' Collier's, 7/7 (January 19, 1946),
22-23.

f "Original Indian Title," Minnesota Law Review, 32 (December, 1947),
28-59.

"Breaking Faith With Our First Americans," Indian Truth, 25, No. 2
(March, 1948), 1-8.

"Alaska's Nuremberg Laws/' Commentary, 6, No. 2 (August, 1948),
136-43.

•(•"Indian Self-Government/' The American Indian, 5, No. 2 (1949), 3-12.

"Our Country's Shame," The Progressive, 13, No. 5 (May, 1949), 9-10.

"Colonialism: U.S. Style," The Progressive, 15, No. 2 (February, 1951),
16-18.

"(•"Americanizing the White Man," The American Scholar, 21 (Spring,
1952), 177-91. Reprinted in Ernest P. Earnest, The Uses of Prose
(New York, Harcourt, Brace, 1956), 370-81.

"First Americans First," The New Leader, 36, No. 4 (January 26, 1953),
15-18.

"The Erosion of Indian Rights, 1950-1953: A Case Study in Bureauc-
racy," Yale Law Journal, 62 (February, 1953), 348-90.

f'lndian Wardship: The Twilight of a Myth," The American Indian,
6, No. 4 (Summer, 1953), 8-14.

SELECTED BRIEFS

Hualpai Case.

U.S. v. Santa Fe RR. 314 U.S. 339
Samson Tulee Fishing Case.

Tulee v. State of Washington. 315 U.S. 681 (1942)
Arizona Voting Case.

Harrison and Austin v. Laveen, 67 Ariz. 337, 196 P. sd 456 (1948)

f Included in this volume.

489

BIBLIOGRAPHY

New Mexico Voting Case.

Trujillo v. Garley. (D.C.— New Mexico, August 3, 1948. Un-

reported.)
Alaska Fishing Rights Case.

Hynes v. Grimes. 337 U.S. 86 (1949)
Idaho Sheep Case.

State of Idaho v. William Lawrence, et al. (Sup. Ct., Idaho, 1950)

San Diego Social Security Case.

Acosta v. San Diego County. 272 P. 2d 92 (1954)
Arizona Social Security Case.

Arizona v. Hobby. 221 F. 2d 498 (C.C.A., B.C., 1954)

BOOK III. THE PHILOSOPHY OF AMERICAN
DEMOCRACY

PAMPHLETS

Immigration and National Welfare. New York, League for Industrial
Democracy, 1940. 40p. Condensed, under the title, "Exclusionary
Immigration Laws/' in Contemporary Jewish Record, 3 (March-
April, 1940), 141-55.

Combating Totalitarian Propaganda: A Legal Appraisal, ed. by Felix
S. Cohen. Washington, D.C., Institute of Living Law, 1944. Ap-
peared originally as three articles:

"Combating Totalitarian Propaganda: The Method of Suppres-
sion/' by F. S. Cohen and Edith Lowenstein, Illinois Law
Review , 57 (November-December, 1942), 193-214.
"Combating Totalitarian Propaganda: The Method of Exposure/'
by F. S. Cohen, J. E. Curry, and B. M. Newburg, University of
Chicago Law Review, 10 (January, 1943), 107-41.
"Combating Totalitarian Propaganda: The Method of Enlighten-
ment," by F. S. Cohen and Lucy M. Kramer, Minnesota Law
Review, 27 (June, 1943), 545~74-

Americanizing Our Immigration Laws. (Prepared for American Jewish
Committee testimony before the Senate Sub-Committee on Immigra-
tion, September, 1948; in collaboration with others.) New York,
American Jewish Committee, 1949.

49<>

BIBLIOGRAPHY

ARTICLES

"Politics and Economics," in Socialist Planning and a Socialist Program,
ed. by H. W. Laidler (New York, Falcon, 1932), pp. 69-83.

"Justice Benjamin Nathan Cardozo/' B'nai B'rith Magazine, 47, No. 8
(May, 1933), 233-34, 249, 255.

"The Blessing of Unemployment," The American Scholar, 2 (1933),
203-14.

f'The Socialization of Morality," in American Philosophy Today and

Tomorrow, ed. by Horace M. Kallen and Sidney Hook (New York,

Lee Furman, 1935), pp. 83-98.
"Socialism and the Myth of Legality," American Socialist Quarterly, 4,

No. 3 (November, 1935), 3-33.
"Supreme Court and Religious Liberty," Jewish Frontier, 4, No. 7

(July, 1937), 6-8.

"The Social and Economic Consequences of Exclusionary Immigration
Laws," National Lawyers Guild Quarterly, 2, (October, 1939), 171-92.

f'Colonialism: A Realistic Approach," Ethics, 55 (April, 1945), 167-81.

•[•"Mythology of Immigration/' Freeland, 2, No. i (February, 1946),
12-13, 16. Appeared first in This Month, 2, No. i (January, 1946),
27-32, under the title, "The Myth of the Immigration Scare."

"The People vs. Discrimination," Commentary, i, No. 5 (March, 1946),
17-22.

f'The Role of Science in Government," Address at a symposium at the
annual meeting of the American Association for the Advancement
of Science, in a joint session of Sections K and L, and the American
Philosophical Association, Boston, December, 1946. Published in
Social Science, 22 (Summer Issue, July, 1947), 195-205. Appeared
in revised form in Scientific Monthly, 65, No. 2 (August, 1947),

1 55-%

f'Science and Politics in Plans for Puerto Rico/' Journal of Social
Issues, 3> No. 4 (Fall, 1947), 6-17.

"Open Season on Alaskan Natives," Newsletter (Institute of Ethnic
Affairs), 5, No. 3 (April, 1948), 4-8. Reprinted in Spanish and
English in Boletin Indigenista (Institute Indigenista Interamericano,
Mexico), 8, No. 3-4 (September-December, 1948), 242-59.

''Puerto Rico's Human Resources," Caribbean Economic Review* 2, No,

i (May, 1950), m-so,
f Included in this volume.

49*

BIBLIOGRAPHY

"Harold L. Ickes — Champion of the Dispossessed," Freeland (June-July-
August, 1952), 7-8.

"A Student's Homage: Jerome Michael," Columbia Law Review, 53
(March, 1953), S12-1^

f"The Vocabulary of Prejudice," Fellowship Magazine, 19, No. 10
(November, 1953), 5-10. Reprinted in part in Christian Friends
(Anti-Defamation League Bulletin), //, No. i (January, 1954), 4-5,
10.

REVIEWS

^Government by Judiciary, by Louis B. Boudin. Columbia Law Review,
32 (November, 1932), 1262-66.

•\The Folklore of Capitalism, by Thurman W. Arnold. National Lawyers
Guild Quarterly, i (March, 1938), 161-64.

•\An Inquiry into the Principles of the Good Society, by Walter Lipp-
mann. Columbia Law Review, 38 (November, 1938), 1324-28.

Ideas Are Weapons, by Max Lerner. Columbia Law Review, 40 (May,
1940), 941-44-

Our Civil Liberties, by Osmond K. Fraenkel. Columbia Law Review, 45
(July, 1945), 664-67.

Classification of Jewish Immigrants and Its Implications (Yiddish Scien-
tific Institute). Jewish Social Studies, 8 (July, 1946), 199-201.

•\The Alien and the Asiatic in American Law, by Milton R, Konvitz.
"Yale Law Journal, 56 (May, 1947), 910-14.

f To Secure These Rights: The Report of the President's Committee on
Civil Rights. Yale Law Journal, 57 (April, 1948), 1141-49. Appeared
also in substantially the same form in ETC: A Review of General
Semantics, 5 (Spring, 1948), 161-68.

-\The Open Society and Its Enemies, by Karl Raimund Popper. Yale
Law Journal, 60 (December, 1951), 1443-481

•fLaw and Social Action: Selected Essays, by Alexander H. Pekelis. Uni-
versity of Pittsburgh Law Review, /j (Spring, 1952), 611-17.

fThe Challenge of Racism: Equality by Statute, Legal Controls over
Group Discrimination, by Morroe Berger. Congress Weekly, 20,
No. 27 (October 19, 1953), 12-13. (Appeared on day of FSCfs death)

fLaw for the Immigrant: Civil Rights in Immigration, by Milton R.
Konvitz. New Republic, zjo, No. i, Issue 2041 (January 4, *95l)»
17-18. (Written on the last day of FSCs life)
f Included in this volume.

492

BIBLIOGRAPHY

UNPUBLISHED PAPERS J

-(-"Government and the Social Contract," Address before the Eastern Law
Students Conference, New York University School of Law, New York
City, March 7, 1936.

"Urbs Coronata: The College and the City/* Address before the City
College of New York Chapter of Phi Beta Kappa, New York, Novem-
ber 23, 1948. Privately printed in Theodore H. Haas, Felix S. Cohen
— A Fighter for Justice (Washington, D.C., City College of New
York Alumni Chapter, 1956).

f'The Democratic Faith," Address before the Yale Philosophy Club,
New Haven, January, 1951.

"Ethics and Morals of Our Foreign Policy," Address before the final
class, Great Issues Course, University of Texas, December 5, 1951.

f Included in this volume.

J On deposit in the Yale Law Library.

Inde2

Absolutism, 195

Acculturation, 213-15, 258-63

Acosta v. County of San Diego, 330

Adams, Brooks, 46, 72, 85

Adkins v. Children's Hospital, 44, 164

Administrative law, 476

Alaska, Indian rights, 462-3

Alcea Band of Tillamooks v. United States,

273, 300, 301, 396
Allen, C. K., 49
Allgeyer v. Louisiana, 440
America, as distinctively Indian, 316 fE
American Agricultural Chemical Co. v.

Moore, 39

American freedom, Pekelis on, 473
American Law Institute, Restatement of

the Law, 59
American pluralistic society, Pekelis on,

473
American Washboard Co. v. Saginaw Mfg.

Co., 39

Americanization of the White Man, 515 ff

Anthropologists, in Indian affairs, 214-15,
3517-19

Anthropology: dynamic, 314; to the In-
dian Service Administrator, 213

Arbitration and judicial decision, Radin
on, 197

Arctander, J. W», 221

Aristotle, 56, 118, 206-7

Arizona v. Hobby, 331

Arnold, Thurraan, Folklore of Capitalism,
reviewed, 442-7

Assertion, question as an ambiguous as-
sertion, 4

AssQt&tted Press v, NLRB, 133

Authoritarianism* 468

Bacon, Francis, 144, 206

Bartlett, F. P., 405

Beccaria, C., 147

Beecher v. Wetherby, 275

Bennett, W. C., 213

Bentham, Jeremy, 93, 119, 179-82, 205;
four principal theses, 179; Theory of
Fictions and Theory of Legislation, ed.
by Ogden, reviewed, 179-82

Berger, Morroe, Equality by Statute:
Legal Controls over Group Discrimina-
tion, reviewed, 478-81

Berle, A. A., 34, 190

Beuscher, J. H., 398

Beutel, F. K., 74

Black, Justice H., 302-3

Blacks tone, William, definition of law,

Boas, F., 57, 80

Bonbright, J. C., 42

Boodin, J. E., 51, 80

Boudin, L. B., 85; Government by Judi-
ciary , reviewed, 436-42

Brandeis, L. D., 36, 44

Bridgman, R. W., 390, 401, 402

Brissenden, P. F,, 74

Broad, C, IX, 51, 80

Brookings Report on Puerto Rico,

405

Brown, B. F., m
Brown, R, A,, 85
Brumbaugh, J. F., 65
Bryson, Lyman, 149
Bukharin, 102

Bureau of Indian Affairs, 310-13, 332-4
Buster v. Wright, 234
Butt z v. Northern Pacific RR, 297-8

495

INDEX

Cairns, Huntington, 152-3, 205; Legal
Philosophy from Plato to Hegel, re-
viewed, 205-10; on Plato's views of law
and justice, 205

Calder v. Bull, 439

Canasatego, Iroquois statesman, 305, 321

Canonicus, Chief of Narragansetts, 285

Cardozo, B. N., 35, 84, 86, 140, 247

Carnap, 51, 80, 104

Castiglioni, Arturo, 261, 376

Casuistry: and American constitutional
law, 15; and ethics, 14, 29; and the case
method, 16, 112; defined, 14; method-
ology of, in modern teaching, 15; Ro-
man law and, 15

Causation: causality is value-weighted,
142-3; "cause" rejected by science, 136;
dependence upon value standards,
137-8; judgments of are relative, pur-
posive, and changing, 140-2; relative
viewpoint on, 108; search for a legal
cause, 137

Celsus, 114, 116

Channing, Edward, 236

Chardon report on Puerto Rico, 405

Cherokee Nation v. Georgia, 300

Cherokee Nation v. Journeycake, 234

Cherokee Tribe, 322

Childs, H. L., 85

China airlift, proposed, 426-7

Chinese exclusion case, 455

Choteau v. Molony, 296

Cicero, 206

Citizenship, Indians as citizens, 253 ff

Civil liberties, 207

Clark, C. E., 74

Clark, H. F., 393

Clark, V. S., 405

Clark v. Deckebach, 455

Classification, relative viewpoint on, 107

Cohen, Herman, 481

Cohen, M. R., 40, 41, 46, 65, 77, 89, 105,
107, 126, 138, 152, 208, 393

Cohen, Victor, 180

Coke, Edward, 63, 118, 196

Collectivism, Lippmann on, 448, 450

Collier, John, 245, 257, 375

Colonialism, 367 ff; and American Indians,
378-80; colonial administration, 373;

native reactions to, 377; possible solu-
tions to problem of, 381-3; reluctance
to relinquish power, 370-2; self-govern-
ment, problems of acquiring, 372

Conscience: as the starting point of moral
wisdom, 28; as a source of moral wis-
dom, 27-8; ethics and, 28, 399

Constitutional law, 436-41

Constitutions, Indian, 222-9

Cook, W. W., 46, 48, 77

Cooper, Father John, in

Coronado case, 37

Corporations: Coronado case, 37; suability
of, 34-5; when is a corporation?, 37 ff;
where is a corporation?, 34-5

Corporations, foreign: Bank of America
v. Whitney Central National Bank, 36;
Dodge Bros. Motor Corp. case, 35-6;
Susquehanna Coal Co. case, 34-5

Courts: attitude towards ethical questions,
165; criticism of judicial decisions, 74 ff;
decisions as products of social deter-
minants, 70 ff; decisions molded by social
forces, 72-3; effect of judicial decisions,
70-6; Ehrlich on, 186; functional anal-
ysis of decisions, 88-92; "hunch"
theory of judicial decisions, 70, 151, 179;
judicial decisions, as a field of historical
events, 82; jurisdiction, contract theory
of, 359; jurisdiction over questions of
ethics, public policy, and theology,
162-3; ^aw conceived as function of ju-
dicial decisions, 65, 69, 81; meaning of
judicial decisions, 71; moral issues
present in every case, 67; resistance to
scientific method, 396, See also Judges;
Judicial precedent; Law; Supreme Court

Cramer v. United States, 274, 278, 299

Creamer, Daniel, 407

Criminal law, relation to civil law, 194,
198

Cushman, R. E*, 48, 72

Custom, its relation to law, 195-4

Darwin, Charles, 138-9
Davis v, Beason, 134
Deduction, relative viewpoint on, 105
Deere v. St. Lawrence River Power Co.,
283

496

INDEX

Dembitz, Nanette, 463

Democracy: chief obstacle in, 441; Indian

origins, 317; need to face facts, 419-20;

tasks of, 421-2; theory of, as a guide,

418-19

Deportation, 453
Deportation cases, violation of human

rights, 482

Dession, George, 398
Dewey, John, 4, 38, 51, 80, 109
Dicey, A. V., 180
Dickinson, John, 62
Diogenes, 306
Discrimination, 478-81; against aliens,

453-7; against Asiatics, 453-7; against

Negroes, 462, 464; executive action to

eliminate, 459-61; in Canal Zone, 460;

in the Armed Forces, 459; in the District

of Columbia, 459
Dodd, F. W., 89
Doenitz, Admiral Karl, 313
Dred Scott v. Sand ford, 439
Due process of law: in judicial review of

social legislation, 43; meaning of, 43-5

Edgcrton, Henry, 140-1
Education. See Indians; Legal education
Edwards, E. E., 259, 291
Egocentric predicament, 308-9, 311
Ehrlich, Eugen, Fundamental Principles
of the Sociology of Law, reviewed, 185-

Einstein, Albert, 121, 134, 157

Elliott, W. Y., 58, 80

Elwang, W. W., 57

Emerson, Rupert, 370, 374-6, 379

Engels, Friedrich, 102

English legal thought, 184

Ethics: and casuistry, 14; concerned with
value judgments in all human conduct,
24~5» S99» conscience and modern ethics,
»8, 399; courts' attitudes towards ethical
questions, 165 ff; doctrines of, as end
result of wisdom, 25; effect upon legal
rules and judgments, 32; ethical truth
dependent upon subjective experience,
toi; formal standards of justice rejected
by, js; "good" and "eviT as concepts,
f ; in all phases of human conduct,

21, 67; in the Christian worldview, 21;
in the Hebrew moral code, 21, 340;
judges and ethical principles, 166-8;
Kant and the human will, 22-3, 24, 183;
matter-of-fact spirit of modern ethics,
29; modern ethics and the basic moral
outlook, 24, 28; moral doctrines in the
law, 27-9; moral knowledge through
methods of science, 25; Plato's view, 21;
science versus, 22-3; scope and method
of modern ethics, 25-8; universality of
ethical values, 160-1. See also Judicial
ethics; Legal ethics; Morality

Everet v. Williams, 162

Ex parte Crow Dog, 234

Ex parte Endo, 134, 462

Executive action, to eliminate discrimina-
tion, 459-61

Fair value, in public utility rate cases,

42-3

Fall, Albert, 238

Federal Indian law, principles of, 232 ft
Federal land grants, original Indian titles,

273 ff

Felix v. Patrick, 233
Field theory of judicial ethics, 168-9
Finkelstein, M., 48, 85, 438
Foster, G. B., 57
Frank, Jerome, 46, 62, 71, 73, 83, 133;

Law and the Modern Mind, reviewed,

Frank, Philipp, 124-5

Frankfurter, Felix, 44, 74, 164-5

Franklin, Benjamin, Indian influence on,
321

Franklin, M., 59

Freedom of will, 22-4, 183

Frege, Gottlob, 50

Functional method: and legal criticism,
74-5; applied to study of religion,
56-7; attack on unverifiable concepts,
47-9*" Benthara's influence on, 181-2;
defined, 47; in anthropology, 57; in
determining effects of decisions, 88; in
economics, 58; in jurisprudence, 78-81;
in law, 48 ff, answers practical ques-
tions, 66, bearing on four legal prob-
lems, 61, definition of law, 61-3, 65, 69;

497

INDEX

Functional method (continued)

in law and physics compared, 53; in
legal criticism, 93-4; in legal thought of
future, 59-60; in mathematics, 50-1; in
modern science and philosophy, 47-8;
in philosophy, 51-2; in physics, 52-3,
57; in political science, 58; intellectual
clarity derived from, 68; legal education
and, 85; new directions in research, 56;
origins, 55-6

Functionalism: as a method, 80; as a
philosophy, 79

Gadsden Purchase, 249

Garlan, E. N., 155

Geometry, systems in, 97, 99

Geronimo, 250-1

Gierke, 38

Glueck, E. T., 74

Goldenweiser, A. A., 57, 80

Gompers, Samuel, 386

Goodhart, A. L., 49, 67, 88

Government: as a business, 358; compared
with private business, 444-5; "disease"
theory of, 351-2; liberal philosophy of,
447-50; policeman theory of, 351; social
contract theory of, 350, 352-63

Greeley, Horace, 287

Grossman, W. L., 76

Grotius, Hugo, Indian influence on, 320

Guardianship of Indians, 328-34

Haines, C. G., 48, 72, 85

Haldane, R. B., 139

Hale, R. L., 41, 42, 65

Hall, Jerome, 85, 89

Hamilton, Alexander, 312-13, 365, 368

Hamilton, W., 72, 85

Handler, Milton, 44

Harrison v. Laveen, 233, 329

Hastings fr Dakota RR Co. v. Whitney,

275

Hayakawa, S. I., 128, 149
Heath, T. L., 97

Heaven of legal concepts, 33-4, 35, 69
Hegel, 102, 208, 468-9
Hepburn v. Griswold, 441
Highwaymen's case, 162
Hilbert, D,» 97

Hirabayashi v. United States, 134

Hobbes, Thomas, 63, 156, 207, 361, 403

Hohfeld, W. N., 54

Holden v. Joy, 297

Holmes, O. W., 46, 56, 66, 74, 77, 167;
definition of law, 61, 193; definition of
legal concepts, 53-4; on Del Vecchio,
452; on duty of judges, 167; on free
speech, 311; on human meaning of law,
118; on illusion of certainty, 200; on
inconclusiveness of legal principles,
83-4; on judicial blindness, 146; on ju-
dicial precedent, 129, 131; on law as
experience, 196; on science in the law,
397; on study of law, 86

Holzer v. Dodge Bros. Motor Corp., 36

Homestead system, Indian influence, 324,
326

Hottentot Hunters, fable of, 95-6

Human inviolability, Lippmann on, 451-2

Human rights, seven questions on, 171 ff

Hume, David, 207

"Hunch" theory of legal decisions, 70, 151,
179

Huntington, 97

Hutcheson, J. C., 85

Hynes v. Grimes Packing Co., 150

Immigrants: contributions to American
economy, 384-7; effect on "American
way of life," 387-8

Immigration, 384-9; discrimination in law
of, 461; human rights violated in, 482;
open door policy, 424-6

In re Aimed Hassan f 454

Inca Indians, 319

Income tax case, 440

Indian Bureau. See Bureau of Indian Af-
fairs

Indian claims, 264 ff; background, 266 ff ;
expensive procedures, 270-1; Indian
Claims Commission (proposed), 271 ff

Indian Claims Act, 302-3

Indian Reorganization Act, 244

Indian Reservations: administration of,
215-18; origin of name, 281

Indian rights: compared with Negro
iigbts» 268; lederaHy protected, aj§ ff;
protection a& members ol tribes,, 858;

INDEX

social security, 330-1; suffrage, 328-9;
welfare payments, 330
Indian Service, 2133
Indians: acculturation, 213-14, 258-63;
Alaskan, 462-3; Americanization of the
White Man, 315 ff; as a minority group,
257; attempts at extermination, 235-6,
265-6; citizenship, 253 ff, 328-34; claims,
see Indian claims, supra; constitutions
for self-government, 222-9; contribution
to American agriculture, 317, 322-3;
contribution to American medicine, 323;
contribution to democratic thought,
3i5ff; contribution to European agri-
culture, 324-5; contribution to property
laws, 324; contribution to sports, 325;
customs, 219-20; economic conditions,
224; education of, 214-15, 226-7; exempt
from local state laws, 234, 253; federal
protection under Spanish law, 245 ff;
federal sovereignty and protection,
«34-D> 379-&o; guardianship of, 528-34;
health conditions, 220; human rights,
protection of, 257-8; industrialization
and urbanization of, 216-18; inheritance
laws among, 219-20; land rights pro-
tected, 237 ff; land tenure among, 218-19;

land titles, 273 ff, original title as
usufructuary right, 300, extinguishable
only by consent of government, 282,
292-3, "menagerie" theory of, 303, not
subject to states, 294, original, 273 ff,
transferability of, 295;

lands: confiscation as solution to title,
#83, leasing of, 236, programs for ex-
propriation, 150, right of occupancy,
293, 3*98, right of tax exemption, 253,
railroad grants, 297-8, trade in, 236;

legal equality of races, 33$, 240 ff;

legal status, 232, 253 ff, as additional
to citizenship, 256;

liquor laws, 255-4; municipal govern-
ment, 226-7 (see also below, tribal self-
government); myth of the nomadic
Indian, 149, 267; myth of the vanishing
Indian, 264-5, $1$, 318, 465; programs
for expropriating land, 150;

property rights of, *% protected by
federal government, 279 ff, 286;

recreation, 221, 225; self government,
see below, tribal self-government;
Spanish influence on American doctrine,
247 ff; Spanish origin of rights, 230 ff,
239 ff, 289; treaties, 244;

tribal self government, 222-9, 234,
243, 306 ff, double-talk concerning,
307 ff;

U.S. relations with, as part of inter-
national relations, 289; value judgments
in cases involving, 148, 149; ward versus
citizen, 328-34; wardship doctrine abol-
ished by courts, 328-31; wardship as a
force for evil, 331-4

Individuality, relative viewpoint on, 108
Induction, relative viewpoint on, 105-6
Inheritance, Indian customs of, 219-20
International Police Force, 422
Iroquois Indians, 319

James, William, 51, 52, 56, 80
Jefferson, Thomas, 280, 321, 368
Jhering, Rudolf von, 33, 35, 113
Johnson v. Mclntosh, 24, 238, 292, 295
Jones v. Meehan, 233, 234, 273, 279
Judeo-Christian ethic, 117
Judge-made-law, according to Bentham,

179

Judges: attitudes towards moral and ethical
considerations, 165-8; ethical patterns
of, 166-8. See also Courts; Judicial
ethics; Judicial precedent; Judicial su-
premacy; Law; Supreme Court

Judicial behavior. See Courts; Judicial
ethics; Law

Judicial ethics: ethical questions properly
in jurisdiction of courts, 161-5. See also
Ethics; Legal ethics; Morality

Judicial logic: are lawyers liars?, 121, 126;
differing versions of truth, 122-3; per-
spective, problem of, 124-7; "rea* mean-
ing" of sentences, 123-4; value-charged
fields affect reactions to identical facts,
126-7. See also Courts; Logic

Judicial precedent: differences in dates of
decision as affecting value, 130; group
value patterns affecting, 135; how past
cases should be interpreted, 129; implies
value judgments, 130-1; not a matter of

499

INDEX

Judicial precedent (continued)
logic, 129-30; predictability, 131-3;
problems of, analogous to field theory
in physics, 133-4; public policy and,
145-7; scientific approach possible, 131

Judicial supremacy, 436-41

Jurisdiction. See Courts

Jurisprudence: an autonomous system of
legal concepts, 46; conflicting definitions
of, 153; functional, 77-8; generally,
152-5; realistic jurisprudence, 65-9;
systematization of systems, 156; trans-
lation theory of, 157-8. See also Courts;
Judicial logic; Judicial precedent; Law

Jurisprudence of welfare, 477

Jury trial, 475-6

Justice: defined apart from human values,
30; defined by modern ethics, 32; de-
fined in terms of human values, 31-2

Kansas Indians, 244

Kant, Immanuel, 22-4, 156, 174, 183, 207-8,

339
Kantorowicz, Hermann, 62, 73, 75, 77, 86,

Kaplan, Mordecai, 57, 80
Keesing, Felix, 214
Keyserling, Leon, 60, 86
Knight, Frank, 393
Knowledge, Lewis' view of, 202, 203-4
Kohler, Wolfgang, 138
Konvitz, M. R.: The Alien and the Asiatic

in American Law, reviewed, 452-7;

Civil Rights in Immigration, reviewed,

481-4

Korematsu v. United States, 452, 463
Kramer, L. M. (Mrs. Felix Cohen), 291
Krieger, Heinrich, 453
Krutch, J. W., 337

Labor unions: Coronado case, 37; legal
immunity for torts of members, 38; lia-
bility for torts of members, 38; suable
as a person, 38; Supreme Court on sua-
bility of, 38; unincorporated association,
not a person, 38

Laidlaw v. Sage, 144

Land: Indian titles, 273 ff, extinguishable
only by consent of government, 292-3,

"menagerie" theory, 303, not subject to
states, 294, transferability, 295;

Leasing of Indian rights, 237; original
Indian title, cases, 292 ff; original Indian
title as usufructuary right, 300; owner-
ship by right of occupancy, 324; pur-
chased from Indians, 279 ff, 285 ff; title
by discovery, 290, 294; trade between
Indians and Whites, 236

Land tenure among Indians, 218-19

Lane v. Pueblo of Santa Rosa, 238

Langdell, C. C., 84

Las Casas, Bartholomew de, 239-41, 457

Laski, H. J., 58, 80, 84

Lasswell, Harold, 85

Law: and custom, 194; as a determinant
of human behavior, 79-81, 86-92; as a
function of human behavior, 72-3, 79-
81; as a function of judicial decisions,
65, 69, 81; as answers to practical ques-
tions, 66; "contradictory" views, 209;
criminal sanctions inherent in, 180;

defined: as overlapping of ethics and
power, 192, by Blackstone, 63, 64, 192,
by Cclsus, 117, by Coke, 64, by Ehrlich,
185-7, by Hobbes, 63, 64, by Holmes,
61, by Langdell, 84, by Radin, 197, by
Robston, 183, functional method, 65, 69;
definitions of, 183, relativity of, 157,
use of, 92;

enforcement as the life of, 179, 181;
English thinking on, criticized, 184;
human significance of, 79-81, 89-92, 118;
"hunch" theory of, 70, 151, 179; in the
field of prejudice, 479; intellectual
clarity required in, 68;

legal certainty: criticized by Frank,
177-9, Holmes on, 200;

moral issues involved in every case,
67; nature of legal rules and concepts,
65; obedience and disobedience to, in-
centives, 89-90; "proper scope of law,"
doctrines of, refuted, 39, 198-9; proph-
ecies of what courts will do in fact, 193;
public policy versus, 145-7;

scope and function, so., 90-1, in mod-
ern ethics, 29-30;

social determinants, 81, 85-6; what
is law?, 183

50°

INDEX

Law and ethics, subjective elements in,
200-2

Law and state, 187-8

Law enforcement: as the life of law, 179,
181; conflict of interest, 89

Law-in-action, described, 91

Law reform, 474; Bentham's influence on,
179-80

Lawyers' law, 30-1

Legal beauty versus human values, 30-1

Legal concepts: as barriers to real solution
of problems, 45-6; as patterns of judicial
behavior, 54

Legal criticism, 74-6; Bentham's contribu-
tion to, 93; function and value of legal
rules, 92-4; functional method in, 93-4

Legal education, functional conception of,

85, 190

Legal ethics: decline of, 19-20, commerce
and modern science as causes, 21;

judges' concern with, 18; larger in-
comes for lawyers, as purpose of, 17-18;
lawyers' concern with, 18; legal scholars'
concern with, 19; logic in legal judg-
ments, 25-6; moral doctrines and the
law, 27-8; moral values as basic to, 20;
science in the service of, 27, 29; trade
code compared, 17. See also Ethics;
Morality

Legal fictions, Bentham on, 181-2
Legal philosophy. See Jurisprudence
Legal precedents, functional theory of, 88
Legal principles, uncertainty of, 82-3
Legal tender cases, 441
Leibniz, 100, 104, 207
Lerner, Max, 72, 85
Lesser, Alexander, 213
Lewin, K., 154

Lewis, C, l.f 5*» 7*» 8o» 107; An Analysis
of Knowledge and Valuation, reviewed,
soo-4

Liberalism, Lippmann on, 447-52
Liberty, Indian passion for, 318
LJppmtnn, Walter, An Inquiry into the
Principfa of the Good Society, reviewed,

Living law, Ehrlich's concept of, 189-30
Llewellyn, £, N.» 46, 48, 49, 74* 77. 88, 132,
190, 3*6

Lochner v. New York, 440

Locke, John, 207, 320

Logic: and the law, 196-7; ethics and, in
the law, 25-6; in legal rules and judg-
ments, 25-6; propositions, 122-4

Logicians: on what is a question?, 3-5;
view of truth, 122

Lonigan, Edna, 405

Louisiana Purchase, 249

Lowie, R. H., 57

McCracken, Duane, 74, 92

Macdonnell, John, 371

McGillycuddy, J. B., 368

McKern, W. C., 57

MacNutt, F. A., 239, 242, 379, 458

Madison, James, 387

Ma-Gee-See v, Johnson, 276

Malaya, 374-6

Malinowski, 57, 58, 80

Marbury v. Madison, 438

Margold, N. R., 232

Mark Twain (Clemens, S. L.), 158

Marshall, John, 293-5

Marshall, L. C., 74

Marx, Karl, 78, 102

Matz, J. B., 405

Mead, Margaret, 213

Mechanical jurisprudence, criticized, 46

Mekeel, Scudder, 214, 216

Menagerie theory of Indian land titles,

303

Midway Co. v. Eaton, 275

Miller v. United States, 282

Minnesota v. Hitchcock, 275

Mitchel v. United States, 237, 248, 295

Moore, G. E,, 24

Moore, Underbill, 46, 72, 76, 151

Moose Dung, Indian Chief, 273-4

Morality: and individualism, 339, 342,
345; and tradition, 342 ff; casuistry and
moral rules, 14-15, 29; dependent upon
uniformity, 341-2; in complex society,
341, 343-4; individualistic and socialistic
compared, 346-9; loss of faith in, 337-8;
rapidity of social change and, 342, 345;
socialization of, 337 ff. See also Ethics

Morals, See Ethics; Legal ethics; Morality

More, Thomas, 319, 324

501

INDEX

Morgan v. Virginia, 480

Mormon Church v. United States, 133

Muller v. Oregon, 44

Municipal government, 474

Murray v. Hoboken Land Improvement

Co., 43

Myers, Gustavus, 72, 85
Myth of the nomadic homeless Indian,

149, 267
Myth of the vanishing Indian, 264-5, 316,

318, 465

NLRB v. Jones fr Laughlin Steel Corp.,

*33

National Resources Planning Board, 405
National Science Foundation, 395
Neal v. Delaware t 232
Negroes: discrimination against, 462, 464,

478-81; rights of compared with Indians,

268

Nelles, Walter, 72, 76, 85
Nims, H., 39

Northwest Ordinance, 242, 245, 286, 290
Northwestern Bands of Shoshone Indians

v. United States, 162-3, 264, 267, 302-3

O. K., Indian origin of, 317

Ogden, C. K., 179-82; Bentham's Theory
of Fictions and The Theory of Legisla-
tion, reviewed, 179-82

Oleff v. Hodapp, 160

Oliphant, Herman, 46, 48, 77, 88, 132

Ozawa v. United States, 453, 465

Padilla, Ambrosio, 288

Palsgraf v. L.L RR., 108, 137

Parker, DeWitt, 24

Parry, E. A., 89

Parsons, Talcott, 395

Patterson, E. W., 59

Peirce, C. $., 51, 80

Pekelis, A. H,, Law and Social Action:

Selected Essays, reviewed, 475-8
People v. Crane, 189
Perry, R. B., 34, 308
Perspective, problem of, 124-7
Philosopher, one who formulates world's

problems, 4
Philosophic systems, development of,

historical materialism and idealism,
102; monism and pluralism, 99 ff; real-
ism and subjective idealism, 101

Pine River Logging Co. v. United States,
300

Plato, 205-6; functional definition of jus-
tice, 55; in Popper's view, 467 ff; on
morality, 340

Pluralistic aspect of American society,

472-3

Poisal v. Fitzgerald, 275
Political pluralism, 472-3, 475
Pollock v. Farmers' Loan & Trust Co., 440
Popper, K. R., The Open Society and its

Enemies, reviewed, 466-71
Porter v. Hall, 233

Pound, Roscoe, 46, 74, 76, 77, 190, 437
Powell, R. R. B., 74, 190
Powell, T. R,, 46, 48
Precedent. See Judicial precedent
Predictability of judicial precedents, 131-3
Prejudice: cost of, 483-4; vocabulary of,

429-35. See also Discrimination
President's Commission on Immigration

and Naturalization Laws, 482-3
President's Committee on Civil Rights,

Report, reviewed, 457~6fi
Property. See Courts; Indians; Land; Law;

Public utilities
Propositions in logic, 122
Public policy: and judicial precedent,

145-7; as whole value pattern, 169; role

of value judgments, 145-8; versus prop-
erty rights, 161
Public utilities: circular legal reasoning

in rate cases, 42-3; "value" of property,

Pueblo of Santa Rosa v. Fall, 234
Puerto Rico: economic conditions, 4 is™ 14;
natural resources, 409-12; overpopula-
tion as a basic problem, 405; political
preconceptions, 414*16; scientific reports
on, 404 ff; value judgments in regard to,
408-9

Question: ambiguous and Indeterminate
questions distinguished, n-t*; ambigu*
ous assertion, 4; answer in relation to,
&t $-7, &; concerning scientific method.

INDEX

390; defined, 4-5; in functional juris-
prudence, 77-8; law, fundamental ques-
tions in, 49-50; proposition versus, 4-6,

propositional function, 5-13, "any"
as mistranslation of, 8-9, misinterpreta-
tion of, 7;

role of question in new thought, 78;
seven questions on human rights, 171 ff;
significant question defined, 10; two
fundamental questions in law, 49-50;
what is a question?, 3; what is law?, 183
Question of individuality, 109

Races, equality of, applied to American

Indians, 232, 240 ff
Racism, 479
Radin, Max, 46, 196; Law as Logic and

Experience, reviewed, 196-9
Realism of American founding fathers,

364-6
Realistic jurisprudence, 65-9; origin in

Holmes, 182
Redfield, Robert, 213
Relativity, theory of, compared to law,

l$4> *57

Relativity of systems. See Systematic rela-
tivism

Reward and punishment, 206

Htynolds v. United States, 134

Hichardville v. Thorp, 274

Rights of Indians. See Indian rights

Robinson* E. $., 59

Rohsort, W. A., Civilisation and the
Growth of Law, reviewed, 183-4

Roguln, Ernest, §8

Roman law, m-i8; concept of contract
in, 113-14

Romuio, Carlos, 373

R0o»evdt, F. D.» 4*1

Rostow, E, V,» 134, 465

Ruisell, Bertrand, 50, 51, 80, gs, 104, 1*7,
4*8, 45«, 451; on the functional method
in mathematics, 54-5; on what is a ques-
tion, 7, n

Sacco-Vametti case, 144
Saftord, W. I., *6tf $76
Saptr, Edwird, 17

Saxe, L. S., 74

Schechter, F. I., 39, 42

Schopenhauer, 102, 468-9

Schroeder, T., 85

Schumacher v. State of Washington, 27^

Schurz, Karl, 312-13, 365, 368

Science: and public responsibility, 400;

ethics and, 22-3, 26-7, 399-403, in
the law, 26-7;

in the courts, 397 ff; moral knowledge
attained through, 25; place of, in legal
rules and judgments, 26-7; political con-
trol over, 390-6, 398 ff

Scott, J. B., 248, 289

Scott v. United States and Apache Indians,
250, 269

Segregation, 480. See also Discrimination;
Prejudice

Selander, K. J., 303

Semantic analysis, 429-35

Senior, Clarence, 411-13

Sheffer, H. M., 7, 119, 154, 156

Shepard, W. J., 58, 80

Shientag, B. L., 74

Shoshone Tribe v. United States, 237, 247,
288, 299

Sioux Tribe v. United Statesf 302

Smith, Adam, 365

Smith, T. V,, 403

Smith, Y. B., 74

Smith v, Allwright, 480

Smyth v. Ame$t 43

Snow, A. H., 367

Snyder, T. R.» 405

Social contract theory of government, 350

Social security, Indian rights, 330-1

Sociological jurisprudence, 442-7; Ben-
tharn's influence on, 181; Ehrlich's con-
tribution to, 185; TimashefFs contribu-
tion to, 192-6

Sociology of law. See Sociological juris-
prudence

Socrates, 205

Spinoza, 100, 207

Squire v. Capoernanf 315

Standley v. Roberts, 234

State, The and law, Ehrlich's theory, 187-8

State of Wisconsin, 375

Stone, Julius, 145

INDEX

Strong, C. A., 109

Suffrage, Indian, 328-9

Sunday School ethics, 20-1, 67, 338, 399

Supreme Court, 436-41; and race discrim-
ination, 452-7, 480; ethnic views, 454.
See also Courts; Judges; Judicial prece-
dent

Systematic relativism, 95, 154; relativity
of causation, 108; relativity of classifica-
tion, 107; relativity of individuality,
108-9; relativity of proof, 105; relativity
of simplicity, 104

Taff-Vale Ry. Co. v. Amalgamated Society

of Railway Servants, 37
Talton v. Mayes, 234
Tauza v. Susquehanna Coal Co,, 34
Tawney, R. H., 80

Technology, government control, 392-3
Tee-Hit-Ton Indians v. United States, 239,

273

Terrace v. Thompson, 454

Thomas Aquinas, Saint, 206-7

Thouless, R. H., 126, 149

Tiraasheff, N. S., Introduction to the
Sociology of Law, reviewed, 192-6

Titles to land. See Indians; Land

To Secure These Rights, Report of Presi-
dent's Committee on Civil Rights, re-
viewed, 457-66

Tocqueville, Alexis de, 441

Trade marks and trade names: circular
legal reasoning in cases involving, 39-
42; legal protection of, 39-40; property
rights in, 39-40; rewards by courts for
commercial exploitation of consumers,
42. See also Unfair competition

Transcendental nonsense: approach to
questions, 35; Bentham on, 181-2; in
legal reasoning, 36; jurisprudence as,
46; legal criticism and, 74-5; value for
practical legal purposes, 37

Trujillo v. Garley, 233, 329

Turner v. United States 6- Creek Nation,
234

Udall, Levi, 329

Unfair competition: circular legal reason-
ing in cases involving, 39-42; language

as property, courts on, 41-2. See also

Trade marks and trade names
United Mine Workers of America v.

Coronado Coal Co., 37
United States v. Alcea Band of Tillamooks.

See Alcea Band of Tillamooks
United States v. Cook, 300
United States v. Joseph, 148
United States v. Kagama, 234, 235, 291
United States v. Klamath Indians, 288
United States v. Paine Lumber Co., 233
United States v. Quiver, 234
United States v. Reese, 232
United States v. Ritchie, 243
United States v. Sandoval, 148
United States v. Santa Fe Pacific Ry Co.

See United States, as Guardian, etc.
United States v. Shoshone Tribe. See Sho-

shone Tribe v. United States
United States v. Sutton, 234
United States v. Thind, 454, 455
United States, as Guardian of the Indians

of the Tribe of Hualpai v. Santa Fe

Pacific RR Co., 238, 273, 277, 298, 301
United States ex rel. Standing Bear v,

Crook, 233, 256
Universal Declaration of Human Rights,

i?5

Ute Indians v. United States, 302
Utilitarianism, 93-4
Utilities, See Public utilities

Value-fields, 126-7, 133-4

Value judgments: in cases dealing with

Indian rights, 148, 149; in language, 149,

4a9-35; subjective element in, aoi-u,

204
Value standards: analogy in physics, 148,

152, 168-9; role in judicial decisions,

145-52, 169
Value theory, public policy concerned

with, 169
Veblen, O., 97
Veblen, Thorstein, 58-9
Vecchio, Giorgio del, 452
Vespucci, Amerigo, $ao
Vttlard, O. G., 380
Vitoria, Francisco, n8» 163, 174, 840*1,

*43» 246!, *68-$, $89, sgo, po

INDEX

Wabasha, Indian Chief, 264-6
Walapai Tribe case, 238, 249, 273, 277, 301
Waldron v. United States, 234
Walker, F. A., 265-6
Wardship of Indians, 328-34
Washington V. & M. Coach Co. v. NLRB,

*33

Watson, J. B., 23
Weber, Max, 56, 80
Wellcome, H. S., 220
Welfare payments to Indians, 330
West Coast Hotel Co. v. Parrish, 165
West Virginia State Board of Education

v. Barnette, 165

Wheeler-Howard Act, 306-7, 309
Whitehead, A, N., 50, 51, 80, 122

Williams, Roger, 285-6

Williams v. Lee, 315

Williston, Samuel, 67

Winters v. United States, 244

Wissler, Clark, 213

Wittgenstein, Ludwig, 49, 51, 80, 104

Woll, Matthew, 386

Worcester v. Georgia, 234, 238, 244, 286,

290, 294, 300, 375
Wu, John, 53, 76, 77

Yntema, Hessel, 46, 48, 77, 83

Zirnmermann, E. W., 405
Zingg, R. M., 213

505

FELIX S. COHEN was the son of
Morris R. Cohen, distinguished pro-
fessor of philosophy at City College.
He received his B.A. from City Col-
lege before his 19th birthday, his
Ph.D. in philosophy from Harvard
at the age of 22, and his bachelor of
laws degree from Columbia Law
School two years later. Most of his
career was spent in the federal gov-
ernment, where he was Assistant
Solicitor of the Department of the
Interior from 1938 to 1948. It was
here that he performed outstanding
services assisting in the drafting of
basic legislation dealing with the
development and preservation of
our natural resources, with our terri-
tories, with immigration and reset-
tlement problems, and particularly
with the American Indians. He
became General Counsel of the
Association on American Indian
Affairs after he left government
service in 1948 to go into private law
practice. He taught at City College
and Yale Law School during and
after his government service, and
until his untimely death in 1 958 at
the age of 4(5. He is the; author of
Ethical Systems and Le^ttt tdmls,
Handbook of Fedtmil Indian IMW*
and Headings in [urixfnudrncrtind
Legal Philwuphy (with Morri* R.
Cohen).

Print rd in flir f/JLC

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